On a sale by a mortgagee under an express power of sale containing a clause for the purchaser's protection in the common form, the purchaser should, of course, abstain from making requisitions as to any matter on which he is exonerated from the duty of inquiry; for if through his own inquiries or otherwise he obtain notice of some irregularity in the sale, he must have regard thereto, and will no longer be protected (g). He must see, however, that sufficient time has elapsed since the date of the mortgage deed for the power of sale to become properly exercisable (h); but if this appear to be the case, he need make no further inquiry (i). If a power of sale expressly given by a mortgage deed contain no clause for the purchaser's protection, he must ascertain not only that the event has occurred in which the power was made exercisable, but also that the mortgage is still subsisting (k). The power of sale incorporated by the Conveyancing Act of 1881 in mortgage deeds made after that year (l), and since generally relied on in practice, gives to the mortgagee a power of sale when the mortgage money has become due, but provides (m) that he shall not exercise such power unless and until (l) notice requiring payment of the mortgage money has been served on the mortgagor, or on oue of several mortgagors, and default has been made in payment of the mortgage money or of part thereof for three months after such service (n); or (2) some interest under the mortgage is in arrear and unpaid for two months after becoming due; or (3) there has been a breach of some provision contained in the mortgage deed or in this Act, and on the part of the mortgagor or of some person concurring in making the mortgage to be observed or performed, other than and besides a covenant for payment of the mortgage money or interest thereon. This follows the old conveyancing form, except that the power is made exercisable at an earlier period (o): but the clause for the purchaser's protection contained in the Act (p) is not the same as that usually inserted in mortgage deeds under the old practice (q). The Act gives no protection to a purchaser until he has obtained a conveyance from the mortgagee in professed exercise of the statutory power of sale; and it does not expressly exempt the purchaser from the duty of inquiring, before conveyance, whether the sale has been properly made. If, therefore, the purchaser make inquiry, before accepting the title, whether any case has arisen to authorise the exercise of the power of sale, the mortgagee will be bound to answer (r). But if the purchaser, buying in good faith, refrain from making any such inquiry, he will be protected against any irregularity on obtaining a conveyance. It appears, therefore, that he should, as a rule, abstain from making such inquiries (s), and need only satisfy himself that sufficient time has elapsed for the power to have become properly exercisable (t). Where a mortgage deed is executed in the usual form, providing for repayment of the money advanced, with interest, six months after the date of the deed (u), the earliest time at which the statutory power of sale can become exercisable is eight months after the date of the deed by the interest being two months in arrear. It appears, however, that at any time after a mortgagee's power of sale has become generally exercisable - that is, after the mortgage money has become due (x) - the mortgagor or his successors in estate may waive compliance with any particular restriction imposed on the exercise of the power; and in such case the mortgagee can make a good title on an exercise of the powers of sale (y). But such waiver, to be effectual, must be given by all persons interested in the equity of redemption; thus, if the mortgagor have made a second mortgage, his waiver alone is insufficient (a). And where a mortgagee, selling under his power of sale, asserts that he can make a good title by means of such waiver, the purchaser is entitled and ought to require him to prove that the alleged waiver has been given by all persons interested in the equity of redemption, and at his own expense to procure all such persons to concur in the conveyance in order to confirm the sale. Where one has bought land from a mortgagee selling under the statutory power of sale, the purchaser's counsel should be careful to express in the deed of conveyance that the mortgagee conveys in exercise of the power of sale conferred upon him by the Conveyancing and Law of Property Act, 1881; as this Act only protects a purchaser taking under a conveyance made in professed exercise of the power of sale which it confers (a).

(g) Parkinson v. Hanbury, 1 Dr. & Sm. 143; Selwyn v. Garfit, 38 Ch. D. 273.

(h) Selwyn v. Garfit, 38 Ch. D. 273, where mortgage money was made payable and a power of sale given six months after the date of the mortgage deed; but it was provided that the mortgagee should not execute the power of sale unless and until default should have been made in payment at the time appointed of some principal money or interest secured, and the mortgagee should have given notice to pay off, and default should have been made in payment for three months after such notice; and it was held that a purchaser from the mortgagee purporting to exercise his power of sale seven months after the date of the mortgage deed had notice ipso facto that the sale was irregular; for the power could not possibly have become exercisable until three months had expired after the mortgage money had become payable, that is, until nine months after the date of the mortgage deed. The sale was therefore set aside on the mortgagor's application, the Court being of opinion that the purchaser was not relieved by a clause for his protection in commonform, even though it exonerated him from the necessity of inquiring whether default had been made in payment of the money secured at the time appointed. (i) See note (f), above.

Title under the statutory power of sale.