Deeds, of which the vendor has a mere right to production.

Right to production under statutory acknowledgment.

Enforce repayment of the mortgage money, or has sold or taken possession of the mortgaged property, the mortgagor is absolved from the obligation of giving notice to pay off or paying interest in lieu of notice: Sharpnell v. Blake, ubi sup.; Letts v. Hutchins, L. R. 13 Eq. 176; Banner v. Berridge, 18 Ch. D. 254, 279; Re Alcock, 23 Ch. D. 372; Bovill v. Endle, 1896, 1 Ch. 648. Where the just inference from the mortgage transaction is that it was intended to be temporary, as in the case of a mortgage to bankers by deposit of title-deeds, the mortgage is redeemable at any time without giving notice to pay off or paying interest in advance instead; Fitzgerald"s Trustee v. Mellersh, 1892, 1 Ch. 385. A mortgage is not redeemable before the day fixed for redemption at law has arrived, not even on tender of the whole principal money with interest up to that date; Brown v. Cole, 14 Sim. 427; unless the mortgagee has taken steps (as by entry into possession) to enforce repayment of the mortgage money; Bovill v. Endle, ubi sup. And this rule applies where a mortgage is made with a proviso that the security shall remain for a certain term of years of reasonable length; Biggs v. Hoddinott, 1898, 2 Ch. 307, 311. As to mortgages redeemable at law on payment by instalments, see Cummins v. Fletcher, 14 Ch. D. 699, 702, 713, 714. A vendor of land in mortgage is of course entitled, on redemption in strict accordance with his right, to require the mortgagee to convey the mortgaged property to the purchaser: but if he desire the mortgagee to acquiesce in any arrangement, which he is not strictly entitled to enforce, with respect to the sale, as if he wish the mortgagee to release part of the mortgaged property from his security, either on payment of part of the mortgage money or without payment, or to waive the right (where given) to have the security to remain for a certain term, he must come to an agreement with the mortgagee, or he will be unable to enforce the contract of sale; see below, Chap. V.; Chap. XII. Sec. 3.

(y) See above, p. 47.

(z) Stat. 44 & 45 Vict. c. 41, s. 9; see sub-ss. 1, 2. The statutory undertaking for safe custody is equally enforceable against the undertaker and every person having possession or control of the documents from time to time; sub-s. 9.

Where the vendor has a mere equitable right of production.

Where the vendor has a covenant for production of the deeds.

(a) See below, Chap. XII. Sec. 3.

(b) See below. Chap. XII. Sec. 3; Wallyn v. Lee, 9 Ves. 24; Lambert v. Rogers, 2 Mer. 489; Heath v. Crealoek, L. R. 10 Ch. 22, 32, 33, 35. With respect to the rule affirmed in the last case thai a Court of Equity will not interfere to deprive a purchaser for value of the possession of title-deeds aired in good faith and without notice of a superior right (whether legal or equitable thereto, note the difference under the present law where a legal righl to the possession of deeds is sought to be enforced in the Chancery Division: Be Cooper, 20 Ch. D. 611: Re Ingham, 1893, 1 Ch. 352, 361.

(c) See below, Chap. XII. In any case in which the liability to produce a title-deed is really incident to the legal estate in some land, a purchaser or mort-ot course affected by it. Thus the assignee of a lease, whether by way of sale, mortWhen a man's title-deeds are in the custody of his solicitor, who has the regular solicitor's lien thereon for the general balance owing of his account (d), the solicitor has the right to refuse inspection or production of the deeds, as well as to keep them in his possession until his account is paid; and he can assert this right as against all persons who may subsequently become purchasers or mortgagees of the land to which the deeds relate (e). But where a solicitor, who has a lien on his client's title-deeds, is instructed to act for the client in the matter of a sale proposed or agreed upon of the land, to which the deeds relate, it is his duty, if he intend to assert his lien as a bar to the production or delivery of the deeds to the purchaser, to call his client's attention thereto (f); and it is thought that if he should omit to do this, he would be taken to have waived his right to obstruct the sale by refusing to allow the purchaser to inspect the deeds (g). But it does not appear that the mere omission of the solicitor to call his client's attention to his lien before undertaking the business of the sale, would prevent him from asserting his lien as a bar to the delivery of the title-deeds to the purchaser on completion (g); and if he should hand over the Solicitor's lien.

Solicitor, having a lien on a vendor's deeds, instructed to act for him in the sale.

Gage or otherwise, is bound to produce the lease in aid of the lessor suing him on some covenant contained therein; Balls v. Musgrave, 3 Beav. 448, 4 Beav. 119.

(d) Expte. Sterling, 16 Ves. 258; Stevenson v. Blacklock, 1 M. & S. 535; Re Morris, 1908, 1 K. B. 473.

(e) Lord v. Wormleighton, Jac. 580, 582; Cottenham, C, Bozon v. Bolland, 4 My. & Cr. 354, 358; Sugden, Ir. C, Blunden v. Desart, 2 Dru. & War. 405, 418, 420, 421, 425-431; Petty v. Wathen, 1 De G. M. & G. 16, 23; Re Faithfull, L. R. 6 Eq. 325; Re Biggs and Roche (1897), 41 Sol. J. 277; Vaughan Williams, L. J., Re Hawkes, 1898, 2 Ch. 1, 24, 25; Neville, J., Re Rapid Road Transit Co., 1909, 1 Ch. 96,99 sq.

(f) Re Safety Explosives, Ltd., 1904, 1 Ch.226, 231, 234, 235, 237, 238.

(g) This appears to follow from the principles laid down in the cases deciding that, where a solicitor, who has undertaken to act for his client in some action or proceeding, discharges himself before it is completed, he must give up all documents received from his client in the course of the proceedings to the new solicitor chosen by his client to be inspected or produced for the purposes of the proceedings, but to be held by the new solicitor deeds to the purchaser, without making any arrangement with his client for satisfaction of what is due to him out of the purchase money or otherwise, he would lose all the benefit of his lien (h). If a solicitor having a lien on the vendor's title-deeds agree to act for the purchaser as well as for the vendor in the matter of the sale, it is thought that, unless he expressly reserve his lien by agreement with the purchaser, he cannot assert it in opposition to the duty, which he has undertaken on the purchaser's behalf, of procuring inspection of the deeds for verification of the abstract and delivery thereof to the purchaser on completion (i). A solicitor's lien cannot be asserted against any right to production or delivery up of the deeds which is paramount to his client's right to withhold or retain them (k). Thus if title-deeds be in the possession of a mortgagee, whose solicitors have them in their custody and so acquire a lien thereon, they cannot withhold the deeds from the mortgagor claiming either to have the deeds delivered up to him on payment of all moneys due under the mortgage (/), or to inspect the deeds by virtue of his right under the Conveyancing Act of 1881 (m). So where a mortgagor is allowed to keep the title-deeds for a while and his solicitor so acquires (since the mortgage) a lien thereon, the solicitor cannot resist the mortgagee's paramount right to recover possession of the deeds (n). And the solicitor of a tenant for life in possession of title-deeds cannot assert his lien thereon after his client's death against the remainderman claiming to have the deeds delivered up to him (o). Also, if a solicitor have a lien on his client's title-deeds, and the client subsequently make some sale or mortgage of the land without disturbing the lien (the deeds remaining in the solicitor's possession by virtue thereof), the lien can only be asserted as a security for costs incurred before the date of the sale or mortgage, and not for any costs afterwards incurred against the vendor or mortgagor (p).