Sec. 51. Law of leasehold mortgages, p. 85.

Sec. 52. Mortgage by assignment of unexpired term, p. 86.

Sec. 53. Mortgage by sublease, p. 90.

Sec. 54. Sublease with declaration of trust, p. 90.

Sec. 55. Renewal of mortgaged leasehold, p. 91.

Sec. 51. Law of leasehold mortgages

Although the technical division of property which English law makes is that of realty and personalty, yet the division of importance to the law of mortgages is land and chattels. Leases of land are.personal property, but the law of mortgage as to them is in most respects identical with the law of mortgages of freehold. Mortgages of chattels in possession and to a certain extent mortgages of choses in action, on the other hand, are regulated largely by different principles at common law, in equity and under statute (a). It seems convenient and proper, therefore, to indicate here the peculiar features of the law of leasehold mortgages, especially as to the way in which such mortgages may be created, notwithstanding that, generally speaking, no attempt is made in this book to discuss the law relating to mortgages of personalty.

It does not appear that the Short Forms of Mortgages Act (6) is applicable to a mortgage of leasehold. The statute refers to a "mortgage of land" and "land" is denned as including "freehold tenements and hereditaments." The forms provided by the statute are appropriate only to freehold interests, and there is no provision similar to that contained in the Short Form of Leases Act, that where the premises demised are of freehold tenure the covenants shall be taken to be made with and the proviso for re-entry to apply to the heirs and assigns of the lessor, and where the premises demised are of leasehold tenure the covenants and proviso shall be taken to be made with and apply to the lessor, his executors, administrators and assigns (c).

(a) Strahan, Law of Mortgages, 2nd ed., p. 8. (b) R.S.O. 1914, c. 117. See chapter 35, infra.

It is provided by the Mortgages Act, R.S.O. 1914, c. 112, s. 7, that certain covenants on the part of a person who conveys and is expressed to convey as beneficial owner shall be implied in a conveyance by way of mortgage and certain further covenants in a conveyance by way of mortgage of leasehold (d). In the case of a registered charge on leasehold land under the Land Titles Act certain covenants are implied in the absence of an entry on the register negativing the implication (e).

A mortgage of leasehold may be created either by assignment of the whole unexpired residue of the term (f) or by sublease (g).

The assignment of a chattel interest in land is void at law unless made by deed (h).