books



previous page: Principles Of The Law Of Real Property | by Joshua Williams
  
page up: Real Estate Books
  
next page: The Rating Of Land Values | by Arthur Wilson Fox

The Law Of Mortgages Of Real Estate | by John Delatre Falconbridge



This book is in part a product of the lectures which I have given at Osgoode Hall since the year 1909, when the Law Society of Upper Canada appointed me lecturer in equity in succession to the late Mr. Alfred H. Marsh, K.C. Some of the features of the book are due to the fact that it is intended for the use of students as well as practitioners.

TitleThe Law Of Mortgages Of Real Estate
AuthorJohn Delatre Falconbridge
PublisherCanada Law Book Company Limited
Year1919
Copyright1919, John Delatre Falconbridge
AmazonReal Estate Law

Including Mortgages Under The Land Titles System.

By John Delatre Falconbridge, M.A., Ll.B. Of Osgoode Hall, Barrister-At-Law. One Of The Lecturers To The Law Society Of Upper Canada. Lecturer In International Law, University Of Toronto. Author Of "Banking And Bills Of Exchange."

-Preface
This book is in part a product of the lectures which I have given at Osgoode Hall since the year 1909, when the Law Society of Upper Canada appointed me lecturer in equity in succession to the late Mr...
-Abbreviations
[The following list refers in most instances to Canadian reports, the usual abbreviations of the English reports being omitted. The reports cited below as U.C.C.P., O.A.R., O.P.R., are usually cited i...
-Part I. The Contract Of Mortgage. Chapter I. Introductory
Sec. 1. Ancient forms of mortgage, p. 1. Sec. 2. Welsh mortgage, p. 4. Sec. 3. Sources of modern law of mortgage, p. 5. Sec. 4. Definition of mortgage, p. 6. Sec. 5. The Conveyancing and Law of Pr...
-Sec. 2. Welsh mortgage
A Welsh mortgage is a practically obsolete form of security (f). It should not, however, be overlooked as it is mentioned in reported decisions in comparatively modern times, and it affords an interes...
-Sec. 3. Sources of modern law of mortgage
The present law of mortgage is the joint product of the ancient common law, the intermediate equity and the modern statute (n). It is of importance to discuss many of the principles of the law of mort...
-Sec. 4. Definition of mortgage
A mortgage is a conveyance of land as a security for the payment of a debt or the discharge of some other obligation for which it is given, the security being redeemable on the payment or discharge of...
-Sec. 5. The Conveyancing and Law of Property Act
The law of mortgage is of course affected in many respects by the provisions of the Conveyancing and Law of Property Act, R.S.O. 1914, c. 109. Some of these provisions are discussed in later chapters ...
-Sec. 6. Fraudulent and voluntary mortgages
It is beyond the scope of this book to discuss the law as to conveyances and mortgages made in fraud of creditors, but in order that the references to the statutes affecting the law of mortgage may be...
-Fraudulent and voluntary mortgages. Continued
(4) Subject to the provisions of section 6, if such a transaction with or for a creditor has the effect of giving that creditor a preference over the other creditors of the debtor or over any one or m...
-Chapter II. Mortgage at Common Law
Sec. 11. Conveyance of the legal estate, p. 17. Sec. 12. Forfeiture on breach of condition, p. 18. Sec. 13. Possession of land and title deeds, p. 19. Sec. 14. Accretions and fixtures, p. 20. Sec....
-Sec. 12. Forfeiture on breach of condition
The condition for reconveyance or defeasance in a mortgage being a legal condition contained in a conveyance must, like all such conditions at law, be strictly observed, otherwise the benefit of it is...
-Sec. 13. Possession of land and title deeds
A legal mortgagee by virtue of the conveyance to him of the legal estate is the terre tenant, that is to say, the person who, having a freehold interest in the land, has the pernancy or possession of ...
-Sec. 14. Accretions and fixtures
Everything that the mortgagor adds to the property to-improve its value must be taken to be an accretion for the benefit of the mortgagee (I), and additions made by a second mortgagee enure to the ben...
-Sec. 15. Capacity to make a legal mortgage
Generally speaking nemo dat quod non habet and only a person having the legal estate and having capacity to transfer property can make a legal mortgage. In order to render the mortgagor personally lia...
-Sec. 16. Capacity of married woman
At common law a married woman was incapable of conveying land and, as a rule, her contracts were not binding upon her. Statutes were, however, passed at various times conferring upon her the power to ...
-Sec. 17. Capacity of trustee or personal representative
It is sometimes said that a trustee cannot sell or mortgage the trust property except under a direction or authority in the trust instrument or under some statutory authority (k). This is, however, mi...
-Capacity of trustee or personal representative. Continued
(r) Sub-s. 2 makes provision for the appointment of local guardians of infants in outer counties. As to an order of a judge in lieu of the consent or approval of the Official Guardian, see Be-langer v...
-Sec. 18. Consideration
The mere existence of an antecedent debt is not valuable consideration for a security given by the debtor (a). It to the vesting of the lands in the personal representatives for three years after the...
-Chapter III. Legal Mortgage in Equity
Sec. 21. Mortgage regarded as security merely, p. 36. Sec. 22. Equitable right to redeem and the correlative right to foreclose, p. 37. Sec. 23. A mortgage cannot be made irredeemable, p. 41. Sec. ...
-Sec. 22. Equitable right to redeem and the correlative right to foreclose
Equity carried to its logical conclusion the principle that the mortgage transaction was in essence merely the giving of security, by incorporating in the contract certain inevitable terms which were ...
-Sec. 23. A mortgage cannot be made irredeemable
When the right of redemption after default became established, the Court of Chancery, in order to prevent its evasion, was obliged to hold that a mortgagor could not by any agreement entered into at t...
-Sec. 24. Once a mortgage always a mortgage
The principle that a mortgage could not be made irredeemable was thus limited in early days to the accomplishment of the end which was held to justify interference by equity with freedom of contract. ...
-Sec. 25. Stipulation for a collateral advantage
The second rule, which prohibited a mortgagee from stipulating for a collateral advantage, was founded upon the statutes against usury. A stipulation of this kind was in equity held void as being cont...
-Sec. 26. Clogging the equity of redemption
There remains the third rule, that any stipulation which restricts or clogs the equity of redemption is void, or, as stated more broadly, that any provision which is repugnant either to the contractua...
-Clogging the equity of redemption. Continued
In Samuel v. Jarrah Timber and Wood Paving Corporation (o) certain debenture stock was transferred as security for an advance. The loan was repayable on thirty days' notice on either part and the mort...
-Sec. 27. Disguised forms of mortgage
A conveyance of property, in consideration of an advance, upon trust to sell in the discretion of the grantee with a declaration of the trusts of the proceeds of sale and a power on the grantee's part...
-Sec. 28. Nature of an equity of redemption
The classical dictum as to the nature of an equity of redemption is that of Lord Hardwicke in Casborne v. Scarfe (k) as follows: D.L.R. 125 ff. in which the cases are collected and the Ontario doctri...
-Sec. 29. How the equity of redemption may be barred or extinguished
Although a mortgagor cannot, at the time of the making of the mortgage and as part of the mortgage transaction, contract himself out of his equity of redemption (p), he may agree that the mortgage sha...
-Chapter IV. Law and Equity in Upper Canada
Sec. 31. Common law in Upper Canada, p. 57. Sec. 32. The law of mortgage, p. 58. Sec. 33. Introduction of equitable jurisdiction, p. 61. Sec. 34. Subsequent changes in the courts, p. 64. Sec. 35. The ...
-Sec. 32. The law of mortgage
The law of mortgage afforded the most conspicuous illustration of the inconvenient result of the lack of equitable jurisdiction. The relation of mortgagor and mortgagee was governed by the common law ...
-Sec. 33. The introduction of equitable jurisdiction
In the year 1834 the first allusion was made in the statutes of Upper Canada to a mortgagor's equity of redemption. The statute 4 W. 4, c. 16 contained a provision for giving to a certificate of payme...
-Sec. 34. Subsequent changes in the courts
The history of the courts of Upper Canada has been referred to in the foregoing pages sufficiently to illustrate the jurisdiction with regard to mortgages at law and in equity respectively. The subseq...
-Sec. 35. The Judicature Act
Radical changes in the constitution and jurisdiction of the courts were made by the Ontario Judicature Act, 1881 (x), which was drawn on the model of the English Supreme Court of Judicature Act 1873 (...
-Chapter V. Equitable Mortgages
Sec. 41. Definition of equitable mortgage, p. 71. Sec. 42. How an equitable mortgage is created, p. 72. . Sec. 43. Mortgage of equitable interest, p. 73. (1) Mortgage of an equity of redemption. (...
-Sec. 42. How an equitable mortgage is created
The equitable nature of a mortgage may be due either to the fact that the mortgaged property is equitable, or to the fact that the mortgagor has not executed an instrument which is sufficient to trans...
-Sec. 43. Mortgage of equitable interest
(1) Mortgage of an equity of redemption. After a mortgagor has made a legal mortgage he has merely a right to redeem and any subsequent mortgage is necessarily an equitable mortgage (m). The effect of...
-Sec. 44. Mortgage by instrument not sufficient to transfer the legal estate
(1) Defect of form. If a document in the form of a legal mortgage is signed but not sealed, or for any other reason is not sufficient to transfer the legal estate (q), it is an equitable mortgage. A...
-Sec. 45. Mortgage by deposit of title deeds
If the owner of freehold or leasehold land deposits his title deeds with another person for the purpose of securing the repayment of an advance, an equitable charge is created, and, notwithstanding th...
-Sec. 46. Remedies of equitable mortgagee
An equitable mortgagee by deposit of title deeds or by formal mortgage of an equity of redemption is entitled to enforce his security by foreclosure or sale, but a person who has a mere equitable char...
-Sec. 47. Floating charge
The essential characteristics of a floating charge were first defined by judicial decision in the case of In re Panama, New Zealand, and Australian Royal Mail Company (m). A company incorporated with ...
-Chapter VI. Mortgages of Leasehold
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....
-Sec. 52. Mortgage by assignment of unexpired term
In Jameson v. London and Canadian Loan and Agency Co. (i) the question what constitutes an absolute assignment of a lease as distinguished from a sub-lease was much discussed. The lease in that case w...
-Sec. 53. Mortgage by sublease
A mortgagee of leasehold by way of sublease is not liable to the lessor for the payment of the rent or for the performance of the covenants in the lease, there being no privity of estate between the m...
-Sec. 54. Sublease with declaration of trust
In order that the mortgagee may have the advantages of a mortgage of leasehold in the form of a sublease rather than an assignment of the lease and, as far as possible, obviate the disadvantages of a ...
-Sec. 55. Renewal of mortgaged leasehold
If the mortgagor of a lease with right of renewal renews the lease or acquires the reversion, either before or after the expiration of the original lease, he will, as a general rule, hold the renewal ...
-Part II. Priorities. Chapter VII. Equitable Principles governing Priorities
Sec. 61. The three equitable rules as to priorities, p. 93. Sec. 62. Rule 1. Between two equitable mortgages, p. 94. Sec. 63. Rule 2. Between first legal mortgage and second equitable mortgage, p. 9...
-Sec. 63. Rules as to priorities
Rule 2. As between a first legal mortgage and a second equitable mortgage, the first mortgage has priority unless the second mortgagee, being a mortgagee in good faith for value and without notice, ha...
-Sec. 64. Rules as to priorities
Rule 3. As between a first equitable mortgage and a second legal mortgage the second mortgage has priority if the holder is a mortgagee in good faith for value and without notice. This principle is o...
-Sec. 65. The equitable doctrine of notice
In accordance with the rules as to priorities stated above a subsequent mortgagee cannot gain priority over an earlier claim of which he had notice when he took his mortgage. The claims are not equal,...
-Sec. 66. Constructive notice
It having been decided in equity that a mortgagee takes subject to any earlier claim of which he has actual notice, another step was inevitable, otherwise he would take care not to learn of outstandin...
-Sec. 67. Priority of first mortgagee unless he is estopped or the subsequent mortgagee has the legal estate
It follows from the three rules as to priorities stated above that it is not sufficient for the second mortgagee, in order to gain priority, to prove that he is a purchaser in good faith for value and...
-Sec. 68. Purchase of the legal estate for value without notice
The plea of purchase for value without notice is a single plea to be proved by the person pleading it; it is not to be this solitary class of cases in which the defence of purchase for value without n...
-Chapter VIII. The Registry Act
Sec. 71. Registration of instruments in Ontario, p. 106. Sec. 72. Effect of not registering, p. 109. Sec. 73. Effect of registration as notice, p. 113. Sec. 74. Priority of registration, p. 117. S...
-Sec. 72. Effect of not registering
It is provided by the Registry Act, R.S.O. 1914, c. 124, s. 71, as follows: 71.-(1) After the grant from the Crown of land, and letters patent issued therefor, every instrument affecting the land or ...
-Sec. 73. Effect of registration as notice
The original Registry Act of 1795 did not provide either that priority of registration should prevail or that the registration of an instrument should constitute notice to anyone. It was therefore hel...
-Sec. 74. Priority of registration
In 1865 (e) was first enacted the provision which is now R.S.O. 1914, c. 124, s. 72, as follows: 72. Priority of registration shall prevail unless before the prior registration there has been actual ...
-Sec. 75. Unregistered equitable claims
Prior to 1865 the registry acts contained a proviso that nothing therein contained should be construed to affect the rights of equitable mortgages as now recognized in the Court of Chancery in this p...
-Sec. 76. Subsequent advances under prior mortgage
If money is advanced on a first mortgage in instalments, the mortgagee, in making subsequent advances pursuant to the terms of the mortgage, is entitled to act on the supposition that no second mortga...
-Sec. 77. Effect of the Registry Act on priorities
It appears from the foregoing (g) that the Registry Act has affected in two ways the equitable. principles governing priorities (h). In the first place, under the statute the priority of claims relati...
-Sec. 78. Subrogation of person paying prior mortgage
It has been held that if a person advances money to the owner of an equity of redemption for the purpose of paying off an existing mortgage, and pays off the mortgage and registers a discharge of it, ...
-Sec. 79. Mechanics liens
Provision is made by the Mechanics and Wage-Earners Lien Act, R.S.O. 1914, c. 140, for the registration of a claim of lien upon land for work or services performed or materials furnished in connection...
-Chapter IX. Consolidation and Tacking
Sec. 81. The doctrine of consolidation, p. 136. Sec. 82. The mortgages must be overdue, p. 138. Sec. 83. Effect of the transfer of the equities or of the mortgages, p. 140. Sec. 84. Case of different ...
-Sec. 82. The mortgages must be overdue
The right of consolidation exists only as to mortgages with respect to which the mortgagor has made default and has consequently lost his legal or contractual right to redeem, so that he is compelled ...
-Sec. 83. Effect of transfer of the equities or of the mortgages
The doctrine of consolidation does not apply unless the mortgages sought to be consolidated were all or both made by the same mortgagor (t) in the same right (u), and it is not sufficient that the equ...
-Sec. 84. Case of different mortgages to one mortgagee
The simpler case is that of two mortgages of different parcels of land made by one mortgagor to one mortgagee. The right to consolidate is lost if the two mortgages originally held by one person are ...
-Sec. 85. Case of mortgages to different mortgagees
The more complex case is that of two mortgages made by one mortgagor of different parcels of land to different mortgagees, where the two mortgages subsequently become vested in the same person, whethe...
-Sec. 86. Consolidation under the Registry Act
In England by the Conveyancing Act, 1881, s. 17, the doctrine of consolidation is excluded as to mortgages made on or after the first day of January, 1882, if and so far as a contrary intention is not...
-Sec. 87. The doctrine of tacking and the Registry Act
The doctrine of consolidation'is not affected by the provision of s. 73 of the Registry Act that tacking shall not be allowed in any case to prevail against the provisions of this Act (n). Even as t...
-Sec. 88. So-called tacking to avoid circuity of action
Closely related to consolidation and depending like it on the principle that he who seeks equity must do equity is another set of cases which are commonly called tacking '(u), but which do not raise a...
-Chapter X. The Land Titles Acts
Sec. 91. Registry Acts and Land Titles Acts, p. 151. Sec. 92. Registration of deeds and registration of titles, p. 154, Sec. 93. Mortgages under the land titles system, p. 156. Sec. 94. The registere...
-Sec. 92. Registration of deeds and registration of titles
Under the Registry Act practically any instrument affecting land may be registered provided its execution is proved in the manner prescribed by the act. The registrar assumes no responsibility as to t...
-Sec. 93. Mortgages under the Land Titles Acts. The Manitoba Real Property Act (r) provides
(d) The expression mortgage means and includes any charge on land created for securing a debt or loan or any hypothecation of such charge. (g) The expression encumbrance means and includes any ch...
-Mortgages under the Land Titles Acts. The Manitoba Real Property Act (r) provides. Continued
(w) See chapter 35, Short Forms of Mortgages Act, Sec. 381. Firstly. That I will pay to him, the said E. F., the above sum of ------ dollars, on the ------ day of------. Secondly. That I will pay in...
-Sec. 94. The registered estate and its priority
Apart from statute the distinction between the legal estate in land and merely equitable interests is fundamental, and the question of priority as between different claims relating to land depends upo...
-Sec. 95. Registration and priority of mortgages
In the case of the registration of a transfer the result is the cancellation of the existing certificate of title and the issue in favour of the transferee of a new certificate which is itself the exp...
-Sec. 96. Executions and mechanics liens
In Manitoba it is provided by the Judgments Act, R.S.M. 1913, c. 107, s. 3, that a certificate of a judgment for the payment of money may be recorded in all or any of the registry offices or land titl...
-Sec. 97. Unregistered interests, notice and fraud
It is provided in the Manitoba, Alberta and Northwest Territories that no instrument shall be effectual to pass any interest in land or to render the land liable as security for the payment of money ...
-Unregistered interests, notice and fraud. Part 2
In cases where actual notice is brought home to the person whose title is impeached or to his agent (v), the courts will probably continue to find evidence of fraud, wherever that is possible on the f...
-Unregistered interests, notice and fraud. Part 3
(4) No person other than the registered owner thereof shall be entitled to transfer a registered charge by a registered disposition; but, subject to the maintenance of the right of such owner, unregis...
-Sec. 98. "Legal" and "equitable" mortgages
Although the term legal mortgage is inappropriate to a mortgage under the land titles system (o) and is not in fact in common use, the term 'equitable mortgage, which under the old system is used i...
-Sec. 99. The remedies of the mortgagee
In Smith v. National Trust Co., Duff J. (d), referring to the Manitoba Real Property Act, says: The Act does not.........treat the mortgage authorized by it as an instrument immediately effecting an...
-The remedies of the mortgagee. Continued
(f) Smith v. National Trust Co., supra. (2) With regard to a remedy of the second class it may-have to be considered whether such remedy has been superseded by a similar remedy which is the subject o...
-Part III. Persons Claiming Under The Mortgagee. Chapter XI. Assignee of the Mortgage
Sec. 101. Transfer of mortgage may include both debt and land, p. 191. Sec. 102. Assignment of mortgage debt, p. 194. Sec. 103. Notice to, or concurrence of, the mortgagor, p. 196. Sec. 104. Assignmen...
-Sec. 102. Assignment of mortgage debt
A mortgagee may of course transfer his interest in the land without the concurrence of or notice to the mortgagor, and the mortgage debt necessarily passes as incident to the security (t), but in orde...
-Sec. 103. Notice to, or concurrence of, the mortgagor
It will be observed that an assignment of a chose in action under the statute is not effective until express notice in writing is given to the debtor (z). Notice to the debtor is not, however, essenti...
-Sec. 104. Assignment subject to state of account
Mere notice to the mortgagor of the assignment of a mortgage will prevent subsequent dealings between the mortgagor and the mortgagee to the prejudice of the assignee, but will afford no safeguard as ...
-Sec. 105. Assignment subject to equity or set-off
If the mortgagor has not concurred in the assignment of the mortgage the assignee takes subject to any claim existing at the date of the assignment which would form the subject of a set-off as between...
-Sec. 106. Equity to reform or avoid mortgage
Apart from the statute just discussed (m) there remains the distinction suggested above (n) between a collateral equity to reform a mortgage and an equity affecting the mortgage account. A similar dis...
-Sec. 107. Liability of assignor to assignee
The assignor of a mortgage is liable to the assignee on a covenant that the mortgage is a valid and subsisting security, if before the assignment the lands have been sold for taxes (s). A covenant by ...
-Sec. 108. Rights and powers of the assignee
The assignment of the mortgage debt confers upon the assignee the right to sue on the covenant for payment (d). (z) Ex parte Smith, In re Hildyard, 1842, 2 Mont. D. & DeG. 587. (a) As to the dischar...
-Chapter XII. Execution Creditors of the Mortgagee
Sec. 111. Rights of execution creditors, p. 211. Sec. 112. Seizure of mortgage under execution, p. 211. Sec. 113. Discharge by sheriff or bailiff, p. 214. Sec. 111. Rights of execution creditors T...
-Sec. 112. Seizure of mortgage under execution
It is now provided by the Execution Act, R.S.O. 1914, c. 80, ss. 25 to 28,as follows: (a) See chapter 8, The Registry Act, Sec. 76. (b) See chapter 10, The Land Titles Acts, Sec. 96. (c) See chapte...
-Sec. 113. Discharge by sheriff or bailiff
It is provided by the Registry Act, R..S.O. 1914, c. 124, s. 68, as follows: 68.- (1) Where a sheriff, bailiff of a Division Court or other officer, under a writ or warrant of execution against goods...
-Chapter XIII. Persons entitled on Death of the Mortgagee
Sec. 121. Mortgage security is personalty, p. 216. Sec. 122. Legal estate formerly devolved as realty, p. 217. Sec. 123. The Devolution of Estates Act, p. 219. Sec. 122. Payment in case of death of...
-Sec. 122. Legal estate formerly devolved as realty
Formerly, however, the legal estate in the mortgaged land devolved according to the ordinary rules applicable to property held absolutely and not by way of mortgage. If a mortgagee of freehold died in...
-Sec. 123. The Devolution of Estates Act
By the Devolution of Estates Act, 1886, which applied only to the estates of persons dying on or after the 1st of July, 1886, it was provided that (a) all estates of inheritance in fee simple, or limi...
-Sec. 124. Payment in case of death of mortgagee
It is provided in Ontario by the Mortgages Act, R.S.O. 1914, c. 112, s. 11, as follows: 11. The payment in good faith of any money to and the receipt thereof by the survivor or survivors of two or mo...
-Sec. 125. Transmission under the Land Titles Acts
In Manitoba, Saskatchewan, Alberta, and the Northwest Territories, land, upon the death of the owner, passes to his personal representative (c). Provision is made by the Real Property Act of Manitoba...
-Part IV. Persons Claiming Under The Mortgagor. Chapter XIV. Transferee of the Equity of Redemption
Sec. 131. Mortgage of the equity of redemption, p. 229. Sec. 132. Absolute transfer of the equity of redemption, p. 230. Sec. 133. Personal liability of mortgagor to mortgagee, p. 233. Sec. 134. Ob...
-Sec. 131. Mortgage of the equity of redemption
If the owner of land has mortgaged it he retains merely an interest which is usually called his equity of redemption (a). He may subsequently either mortgage this interest or transfer it absolutely. ...
-Sec. 132. Absolute transfer of the equity of redemption
If the mortgagor transfers the equity of redemption absolutely, the effect is that the transferee becomes the person entitled to redeem the only mortgage or the latest mortgage, as the case may be, an...
-Sec. 133. Personal liability of mortgagor to mortgagee
The transfer of the equity of redemption does not relieve the transferor of his personal liability, if any, to the mortgagee or to the person from whom he acquired the equity, as the case may be. Nor...
-Sec. 134. Obligation of transferee to indemnify transferor
The transfer of the equity may, however, give rise to an obligation on the part of the transferee to indemnify his immediate transferor against the liability, if any, of the latter to the mortgagee or...
-Sec. 135. Mortgagee entitled to enforce indemnity only if it is assigned to Mm
The mortgagor is not bound to. enforce the purchaser's obligation to indemnify him for the benefit of the mortgagee, and the position is not changed by the death of the mortgagor. In that event the mo...
-Sec. 137. Marshalling and subrogation
The general rule is that if several parcels belonging to the same person, which are mortgaged to secure a single debt, become severed in title, they must, as between their respective owners, bear the ...
-Sec. 138. Case of transfer of one of two parcels subject to a common mortgage
The simplest case of marshalling (h) is that of a first mortgage of two parcels to A and a second mortgage of one of the two parcels to B. If the first mortgagee realizes his claim out of the parcel w...
-Sec. 139. Case of transfer to different persons of two parcels subject to common mortgage
The case is more complicated if two parcels are subject to a mortgage to secure one debt and subsequently one parcel is conveyed or mortgaged to one person and the other is conveyed or mortgaged to an...
-Chapter XV. Lessee of Mortgaged Land
Sec. 141. Distinction between leases before and after mortgage. p. 249. Sec. 142. Lease by owner prior to mortgage, p. 250. Sec. 143. Lease by mortgagor subsequent to mortgage, p. 254. Sec. 144. St...
-Sec. 142. Lease by owner prior to mortgage
If a mortgage is made of land of which the owner has already granted a lease, the mortgagee takes subject to the lease (c), and can obtain possession only upon the termination of the lease (d). The ef...
-Sec. 143. Lease by mortgagor subsequent to mortgage
If the owner of land mortgages it and thereafter leases it (a), the lease is binding upon the tenant, who is not permitted tion in the case of a mortgage which conveys the equity of redemption is ment...
-Sec. 144. Statutory or contractual power to lease
After the making of a mortgage the concurrence of both the mortgagor and the mortgagee is necessary for a valid lease unless either party is empowered by statute or by the terms of the mortgage (m). ...
-Chapter XVI. Execution Creditors of the Mortgagor
Sec. 151. Rights of execution creditors, p. 259. Sec. 152. Seizure and sale of equity of redemption, p. 261. Sec. 153. Effect of seizure, sale and conveyance by sheriff, p. 263. Sec. 154. Who may p...
-Sec. 152. Seizure and sale of equity of redemption
It is provided in Ontario by the Execution Act, R.S.O. 1914, c. 80, ss. 30 and 31, as follows (q): 30. Where the word mortgagor occurs in the next succeeding three sections it shall be read and con...
-Sec. 153. Effect of seizure, sale and conveyance by sheriff
It is further provided in Ontario by the Execution Act, R.S.O. 1914, c. 80, s. 32, as follows: 32. The effect of the seizure or taking in execution, sale and conveyance of mortgaged lands and tenemen...
-Sec. 154. Who may purchase at sheriff's sale
It is further provided in Ontario by the Execution Act, R.S.O. 1914, c. 80, s. 33, as follows: 33. A mortgagee of land, or the executors, administrators or assigns of a mortgagee, being or not being ...
-Chapter XVII. Persons entitled on Death of the Mortgagor
Sec. 161. Devolution of equity of redemption, p. 266. Sec. 162. The Devolution of Estates Act, p. 268. Sec. 163. Locke King's Act, p. 271. Sec. 164. Estates of insolvent deceased persons, p. 273. ...
-Sec. 162. The Devolution of Estates Act
In Ontario by virtue of the Devolution of Estates Act, R.S.O. 1914, c. 119, upon the death of the owner of the equity of redemption in lands (whether testate or intestate, and notwithstanding any test...
-Sec. 163. Locke King's Act
Formerly, on the death of a mortgagor of land, the mortgage debt, like other debts (r), was primarily payable out of his personal estate, if the mortgage debt was the debt of the deceased himself, so ...
-Sec. 164. Estates of insolvent deceased persons
It is provided in Ontario by the Trustee Act, R.S.O. 1914, c. 121, ss. 53, 63, 64 and 65, as follows: 53. On the administration of the estate of a deceased person, in the case of a deficiency of asse...
-Chapter XVIII. Dower and Curtesy in Mortgaged Land
Sec. 171. Dower in legal estate, p. 277. Sec. 172. Dower in equity of redemption, 1834-1879, p. 281. Sec. 173. Dower in equity of redemption since 11th March, 1879, p. 282. Sec. 174. Quantum of dow...
-Sec. 172. Dower in equity of redemption, 1834-1879
At common law a widow was not entitled to dower in any equitable interest of her husband (I), but this rule was changed in England by the Dower Act, 1833, adopted in Upper Canada in 1834 by the statut...
-Sec. 174. Quantum of dower in equity of redemption
Prior to the 11th of March, 1879, when the question of dower in an equity of redemption was governed by the statute 4 W. 4, c. 1, a widow had no claim to dower unless her husband died beneficially ent...
-Sec. 175. Bar and forfeiture of dower
The short form of bar of dower in mortgages in common use in Ontario is that provided by the Short Forms of Mort- gages Act (l) as follows: And the said wife of the said mortgagor hereby bars her dow...
-Bar and forfeiture of dower. Continued
15.- (1) Where the gaol surgeon of a county or district in which a married woman, who is not confined in a hospital for the insane, resides, and another medical practitioner to be named by the Judge, ...
-Sec. 176. Tenancy by the curtesy
Tenant by the curtesy of England is where a man's wife is seised of an estate of inheritance, that is, of lands and tenements in fee simple or fee tail, and he has, by her, issue born alive capable of...
-Part V. Extinguishment Of Mortgage. Chapter XIX. Discharge or Reconveyance
Sec. 181. Revesting of estate on payment of mortgage, p. 299. Sec. 182. Obligation of mortgagee to reconvey, p. 301. Sec. 183. Statutory form of discharge, p. 303. Sec. 184. Effect of discharge whe...
-Sec. 182. Obligation of mortgagee to reconvey
Except in the case of payment being made strictly in accordance with the terms of a mortgage and the estate being revested by virtue of a defeasance clause in the mortgagee, a reconveyance is necessar...
-Sec. 183. Statutory form of discharge
It is provided in Ontario by the Registry Act R.S.O. 1914, c. 124, s. 62, as follows: 62. In the case of a registered mortgage the registrar on receiving a certificate, Form 10, executed by the mortg...
-Sec. 184. Effect of discliarge when registered
It is provided in Ontario by the Registry Act, R.S.O. 1914, c. 124, s. 67, as follows (f): 67. Every certificate of payment or discharge of a mortgage or of the conditions therein or of the lands or ...
-Effect of discliarge when registered. Continued
(k) Lee v. Morrow, 1866, 25 U.C.R. 604. (l) R.S.O. 1914, c. 124, ss. 62, 67. (m) Hosking v. Smith, 1888, 13 App. Cas. 582, at p. 585. (n) Trust and Loan Company v. Gallagher, 1879, 8 O.P.R. 97; In r...
-Sec. 185. Discharge in case of death of mortgagee
Formerly a certificate of discharge executed by the mortgagee, his assignee, or by such other person as might be entitled by law to receive the money and to discharge the mortgage, when registered ope...
-Sec. 186. Vesting order
It is provided in Ontario by the Trustee Act, R.S.O. 1914, c. 121, s. 9, as follows (p): 9. Where a mortgagee of land has died without having entered into the possession or into the receipt of the re...
-Sec. 187. Discharge under the Land Titles Acts
A mortgage under the land titles system does not convey the legal estate or transfer the land to the mortgagee, but has effect as security merely, (z). Therefore the mortgagee has no estate to be reco...
-Chapter XX. Right to Assignment of Mortgage
Sec. 191. Reconveyance to the person best entitled, p. 324. Sec. 192. Statutory right to assignment of mortgage instead of reconveyance, p. 326. Sec. 193. The amending statute, p. 329. Sec. 194. Prio...
-Sec. 192. Statutory right to assignment of mortgage instead of reconveyance
It is now provided in Ontario by the Mortgages Act, R.S.O. 1914, c. 112, s. 3, as follows (k). 8.- (1) Notwithstanding any stipulation to the contrary where a mortgagor is entitled to redeem he may r...
-Sec. 193. The amending statute
After the decision in Teevan v. Smith (u) the English statute of 1881 (v) was amended by the addition of the provision which is now contained in R.S.O. 1914, c. 112, s. 3. sub-.s. 2, as follows: (2) ...
-Sec. 194. Priorities unaffected by the statute
When a mortgage is paid off the statute under discussion provides in effect that the person who in priority to all other persons interested would be entitled to require a reconveyance of the estate fr...
-Sec. 195. Assignment on the same terms as reconveyance
The statute (o) provides that the mortgagee may be required to assign the mortgage on the terms on which he would be bound to reconvey. This phrase refers not merely to the amount of the principal, ...
-Sec. 196. Statute not applicable to mortgagee in possession
The statute (s) provides that it shall not apply if the mortgagee is or has been in possession. ' The reason why a mortgagee in possession cannot be required to give an assignment of the mortgage inst...
-Chapter XXI. Merger
Sec. 201. Merger at law and in equity, p. 338. Sec. 202. Intention expressly declared, p. 341. Sec. 203. Intention gathered from circumstances of transaction, p. 342. Sec. 204. Intention presumed fr...
-Sec. 202. Intention expressly declared
Where a presumption of merger arises by reason of the union in the same person of a charge and of an estate of inheritance in the property charged, such presumption may be rebutted by a declaration th...
-Sec. 203. Intention gathered from circumstances of transaction
In the absence of an expressed intention against merger, the presumption of merger arising from the union of a charge to be rebutted by evidence of intention derived from the circumstances, without ex...
-Sec. 204. Intention presumed from consideration of benefit
In the absence of evidence of actual intention, either express or gathered from the circumstances of the transaction (see Sec. 205, infra), a decision which was much discussed in the Court of Appeal....
-Sec. 205. Purchase with notice of subsequent charges
In Toulmin v. Steere (g), Grant, M.R., enunciated the rule that the purchaser of an equity of redemption cannot set up a prior mortgage of his own, nor, consequently, a mortgage which he has got in, ...
-Part VI. Mortgage Actions. Chapter XXII. Action for Possession
Sec. 211. Concurrent remedies of the mortgagee, p. 349. Sec. 212. Possession as between mortgagor and mortgagee, p. 350. Sec. 213. Mortgagee's right in absence of redemise, p. 353. Sec. 214. Proviso f...
-Sec. 212. Possession as between mortgagor and mortgagee
In the absence of any provision in the mortgage reserving the right of possession to the mortgagor or of any agreement express or implied to the same effect, a legal mortgagee is entitled, after the m...
-Sec. 213. Mortgagee's right in absence of redemise
Where a person having an estate upon condition continues to hold after the condition is broken, he is, until the remainderman enters, a tenant at sufferance (w), but if he is in possession by agreemen...
-Sec. 214. Proviso for quiet enjoyment until default
After the making of a mortgage by which the land is conveyed to the mortgagee, the mortgagor is not entitled to possession against the mortgagee unless the right to possession is reserved to the mortg...
-Sec. 215. Rights of mortgagor in possession
The position of a mortgagor who remains in possession after the making of the mortgage, if the mortgage does not reserve to him the right of possession, or after default, if the mortgage provides that...
-Sec. 216. Mortgagee's rights against third parties
When a mortgagee becomes entitled to possession as between himself and the mortgagor, he may maintain an action for possession against the mortgagor or the mortgagor's tenant under a lease made subseq...
-Sec. 217. Possession under the Land Titles Acts
It is provided in Ontario by the Land Titles Act, R.S.O. 1914, c. 126, s. 33, as follows: 33. Subject to any entry to the contrary on the register the registered owner of a registered charge, for the...
-Chapter XXIII. Action on the Covenant
Sec. 221. Personal remedy of the mortgagee, p. 366. Sec. 222. Covenant for payment, p. 369. Sec. 223. Who may sue on the covenant, p. 372. Sec. 224. Who may be sued on the covenant, p. 373. Sec. 2...
-Sec. 222. Covenant for payment
The form of covenant for payment in ordinary use in Ontario is that contained in schedule B to the Short Forms of Mortgages Act (l), as follows: That the mortgagor will pay the mortgage money and int...
-Sec. 223. Who may sue on the covenant
An assignee of the morgagee's estate in the land may sue for foreclosure or sale, but to enable a person other than the mortgagee or his personal representative to bring an action for personal payment...
-Sec. 224. Who may be sued on the covenant
The mortgagor continues to be personally liable under his covenant, although he has conveyed away the equity of redemption in the land. In such a case the mortgagee would be entitled to judgment on th...
-Sec. 225. When the right to sue arises
The right of the mortgagee to sue on the covenant arises when the covenantor is in default according to the terms of the covenant, but the time for payment may be impliedly extended as to the result o...
-Sec. 226. Acceleration of payment
An action for foreclosure or sale may be brought so soon as default is made in payment of any part of the principal or interest in the absence of an express or implied provision to the contrary in the...
-Acceleration of payment. Continued
(c) 1893, 15 O.P.R. 254 at p. 258. I may note that I do not decide upon what might be done before judgment obtained upon the covenant. That recovery changes the position of the parties-the mortgage ...
-Sec. 227. When the mortgagee is disentitled to sue
The mortgagee's action on the covenant may be barred by lapse of time (j) or may be extinguished by a release of the equity of redemption (k), by a release of the mortgage debt, either under seal or f...
-Chapter XXIV. Action for Foreclosure or Sale
Sec. 231. The right to foreclosure or sale, p. 388. Sec. 232. Writ of summons for foreclosure, p. 395. Sec. 233. Plaintiffs in the action, p. 399. Sec. 234. Original defendants, p. 401. (a) The mort...
-Sec. 231. The right to foreclosure or sale
When the Court of Chancery began to entertain applica-cations by mortgagors for leave to redeem notwithstanding that by default in payment they had lost their legal or contractual right to redeem, it ...
-The right to foreclosure or sale. Continued
(q) Tennant v. Trenchard, 1869, L.R. 4 Ch. 537, at p. 542; London County and Westminster Bank v. Tompkins, [1918] 1 K.B. 515, at p. 529; cf. chapter 5, Equitable Mortgages, Sec. 44. (r) See s. 36 of ...
-Sec. 232. Writ of summons for foreclosure
After default under a mortgage, the mortgagee might before the Judicature Act have pursued various remedies by action at law or suit in equity concurrently (q). He may now combine his claims in one ac...
-Sec. 233. Plaintiffs in the action
If there are two or more mortgagees they must both or all be parties to the action, whether they be joint tenants or tenants in common of the lands conveyed by the mortgage, and therefore one of the m...
-Sec. 234. Original defendants
As already pointed out any persons partially or jointly interested in the mortgage security who are not plaintiffs in an action for foreclosure must be made defendants. All persons who are interested...
-Original defendants. Part 2
So where the plaintiff claimed that an execution against the mortgagor which was prior in time to the plaintiff's mortgage should be postponed, it was held that the execution creditor must be made a d...
-Original defendants. Part 3
(j) Hobart v. Abbot, 1731, 2 P. Wms. 643. (k) In re Burrell, Burrell v. Smith, 1869, L.R. 7 Eq. 399; Silver-thorn v.Glazebrook, 1899, 30 O.R. 408. (l) Peto v. Hammond, 1860, 29 Beav. 91; Buckley v. ...
-Original defendants. Part 4
10.- (1) Where there is no legal personal representative of a deceased mortgagor of freehold property it shall be sufficient for the purposes of an action for the foreclosure of the equity of redempti...
-Sec. 235. Pleadings
Usually in an action for foreclosure or sale there is no dispute as to the validity of the mortgage or as to any other matter which will necessitate the delivery of pleadings, and when the parties hav...
-Sec. 236. Interlocutory judgment
A mortgage, notwithstanding its legal form as a conditional conveyance, is regarded in equity as a security merely, subject to an equitable right to redeem after the legal or contractual right to rede...
-Interlocutory judgment. Continued
In a judgment obtained on a praecipe, however, no special terms may be inserted. Inasmuch as such a judgment is obtained ex parte and without the interposition of any judicial officer, the court wisel...
-Sec. 237. General conduct of the reference
The proceedings on the reference will be governed in Ontario by rules 402 to 459 (x) so far as they are in their terms applicable to a reference in a mortgage action and so far as they are consistent ...
-Sec. 238. Considering judgment and adding parties
It is provided in Ontario by rules 468 to 471 as follows: 468. Upon a reference under a judgment for foreclosure or sale or redemption of mortgaged property, the master shall enquire and state whethe...
-Considering judgment and adding parties. Continued
(g) Canadian Bank of Commerce v. Forbes, 1885, 10 O.P.R. 442 (h) See chapter 13, Persons entitled on Death of the Mortgagee Sec. Sec. 122, 123. (i) Crosbie v. Fenn, 1879, 26 Gr. 283. (j) Nichol v. ...
-Sec. 239. Taking acounts and appointing day for redemption
On the day named in the appointment and notices issued pursuant to rules 470 and 472 the plaintiff should bring into the master's office affidavits proving that service has been affected on the variou...
-Taking acounts and appointing day for redemption. Continued
(c) Settling priorities. The priorities inter se of holders of liens, charges or encumbrances will usually depend upon the dates on which the claims were registered (b), and the priorities of all par...
-Sec. 240. The master's report
The findings of the master, resulting from the enquiries and proceedings in his office outlined above, and the appointment of a day for redemption are embodied in his report. It is provided by rule 4...
-The master's report. Continued
(a) Hayes v. Hayes, 1881, 8 O.P.R. 546. Sec. 241. Subsequent accounts and appointment of new day for redemption. If the first subsequent encumbrancer fails to redeem within the period of six months a...
-Sec. 242. Stay of action on payment of arrears
As has been already pointed out a mortgagee is entitled to bring an action for foreclosure or sale even though the mortgagor is in default only in respect of an instalment of principal or interest, pr...
-Sec. 243. Change of state of the account
It is provided in Ontario by rule 484 as follows: 484.- (1) Where the state of the account ascertained by a judgment order or report is changed before the final order is obtained, the mortgagee may e...
-Sec. 244. Final order of foreclosure
If a defendant fails to pay on or before the day appointed for redemption by him, a final order of foreclosure may be made (s). The plaintiff may become entitled to a final order either under a judgme...
-Final order of foreclosure. Continued
So long as the final order of foreclosure remains in force, it is a complete bar to the right to redeem; but the mortgagor may apply to set aside the order and to be allowed to redeem. (b) Collinson ...
-Sec. 245. Action or judgment for sale
In England prior to the Chancery Improvement Act, 1852, the court might decree sale instead of foreclosure in certain cases, as in the case of a mortgage of a dry reversion, or if the security were sc...
-Action or judgment for sale. Continued
(y) Cruso v. Close, 1879, 8 O.P.R. 33; see, however, London and Canadian Loan and Agency Co. v. Morrison, 1879, 7 O.P.R. 450, where under a former rule the opinion was expressed that an order increasi...
-Report on Sale
Pursuant to the judgment, bearing date the day of , and made in this cause, I have, in the presence of (or, after notice to), all parties concerned, settled an advertisement and particulars and condit...
-Sec. 246. Foreclosure and sale under the Land Titles Acts
In Ontario it is provided by the Land Titles Act, R.S.O. 1914, c. 126, s. 34, as follows: 34. Subject to any entry to the contrary on the register the registered owner of a registered charge may enfo...
-Foreclosure and sale under the Land Titles Acts. Continued
(i) This section is quoted in full in chapter 10, Sec. 99. (j) R.S.M. 1902, c. 148, s. 126. Under the statute as amended in 1906 it was held that the court had jurisdiction in Manitoba to open up fo...
-Sec. 247. Sale proceedings in the registrar's office
The Manitoba, Saskatchewan and Alberta statutes (f) contain substantially similar provisions for sale and foreclosure in the land titles office under the direction of the registrar. For the purpose of...
-Sale proceedings in the registrar's office. Continued
It is further provided by the Manitoba statute, s. 121A, as follows (m): 121A. Whenever a mortgage heretofore made, purporting to be made in pursuance of The Real Property Act, contains a power of sa...
-Sec. 248. Foreclosure in the registrar's office
The Saskatchewan Land Titles Act, 1917, s. 112, provides: 112.- (1) When default has been made in payment of the principal or interest secured by a mortgage or encumbrance and such default has contin...
-Foreclosure in the registrar's office. Continued
(4) Before the foreclosure proceedings mentioned in this section shall apply, the land affected must be under The Real Property Act. In addition to the parties heretofore entitled to make an applicati...
-Chapter XXV. Action for Redemption
Sec. 251. The right to redeem, p. 486. Sec. 252. When the right arises, p. 490. Sec. 253. Notice or interest after default, p. 493. Sec. 254. Tender, p. 496. Sec. 255. Payment, p. 500. Sec. 256. ...
-Sec. 252. When the right to redeem arises
Although a mortgagor cannot at the time of the making of the mortgage and as part of the mortgage transaction, contract himself out of his equity of redemption (p), a mortgage may be made irredeemable...
-Sec. 253. Notice or interest after default
The question of the rate of interest payable under a mortgage after maturity is discussed elsewhere (f), but the question of notice or interest in lieu of notice after maturity belongs to the subject ...
-Sec. 254. Tender
It is the duty of a mortgagee on being paid by the mortgagor the principal, interest and costs due upon the mortgage, and contemporaneously with such payment, to hand to the mortgagor the title deeds ...
-Sec. 255. Payment
Payment to be valid must be made to the mortgagee or other person entitled to the money or his duly authorized agent. Payment to one of two or more mortgagees on a joint debt, or to one of two or mor...
-Sec. 256. Who may be plaintiffs
Anyone may bring an action to redeem who has any interest of any kind in the equity of redemption (d), or who is liable for the mortgage debt and is sued on such liability; and anyone who is entitled ...
-Sec. 257. Who must be defendants
Every person whose interests may be affected by the accounts to be taken in the action must be brought before the court either as plaintiff or defendant. As already noted, any person who is interested...
-Sec. 258. Writ of summons and interlocutory judgment
In Ontario the form of endorsement of the writ of summons in an action for redemption is as follows: The plaintiff's claim is to have an account taken of what, if anything, is due on a mortgage dated...
-Sec. 259. Proceedings in the master's office
It is provided by rules 480 and 481 as follows: 480. Upon a reference under a judgment for redemption, the master shall, without any special direction, take an account of what is due to the defendant...
-Chapter XXVI. Limitation of Actions
A. Personal Actions for Payment. Sec. 261. Covenant, debt and account, p. 515. Sec. 262. Disability or absence, p. 517. Sec. 263. Acknowledgment or part payment, p. 518. B. Actions to recover Mone...
-A. Personal Actions for Payment. Sec. 261. Covenant, debt and account
If there is a covenant for payment the limitation of action upon it is governed in Ontario by the Limitations Act, RS.0. 1914, c. 75, s. 49, as follows: 49.- (1) The following actions shall be commen...
-Sec. 262. Disability or absence
Disability on the part of the plaintiff, or absence from Ontario on the part of the defendant, is provided for by R.S.O. 1914, c. 75, ss. 51 and 52, as follows: 51. Where a person entitled to bring a...
-Sec. 263. Acknowledgment or part payment
Provision is made as to the effect of an acknowledgment or part payment by R.S.O. 1914, c. 75, s. 54 to 59, as follows: 54. Where an acknowldgment in writing, signed by the principal party or his age...
-B. Actions to recover Money out of Land. Sec. 264. Period of limitation as to principal
A limitation of actions or other proceedings to recover sums of money secured by mortgage or lien or otherwise charged upon or payable out of any land or rent was imposed in England by the Real Proper...
-Sec. 265. Acknowledgment or part payment
In the case of an action to recover money out of land an acknowledgment, in order to create a new starting point from which time will run, must be given in writing signed by the person by whom the mon...
-Sec. 266. Limitation as to arrears of interest
The amount of arrears of interest which may be recovered out of the land is governed by R.S.O. 1914, c. 75, s. 18, as follows: O.A.R. 66; Ross v. Schmitz, 1913, 6 S.L.R. 131, 14 D.L.R. 648. See also ...
-Sec. 267. Acknowledgment
An acknowledgment which under s. 18 of the Limitations Act will afford a new starting point for the period of limitation applicable to an action to recover arrears of interest must-be in writing and s...
-C. Actions for Possession, Foreclosure or Sale. Sec. 268. Limitation prior to 1833
A mortgagor's right to redeem will not be barred by lapse of time so long as he remains in possession, but it may be barred if he is out of possession. Conversely, if a mortgagee has obtained possessi...
-Sec. 269. The Real Property Limitation Acts
The statute of James, so far as it was applied by analogy or otherwise to claims to real property, was superseded in England by the Real Property Limitation Act of 1833 (3 & 4 W. 4, c. 27) and in Uppe...
-Sec. 270. Action to recover land
The English Real Property Limitation Act of 1833 contained no provision specially applicable to a suit for foreclosure eo nomine by a mortgagee out of possession, but it provided in general terms that...
-Sec. 271. When the right is deemed to accrue
The English Real Property Limitation Act of 1833 contained various provisions as to the point of time at which the right to make an entry or bring an action should be deemed to have first accrued with...
-When the right is deemed to accrue. Continued
(11) Where the estate or interest claimed is an estate or interest in reversion or remainder, or other future estate or interest, and no person has obtained the possession or receipt of the profits of...
-Sec. 272. Acknowledgment
It is provided in Ontario by R.S.O. 1914, c. 75, ss. 14 and 15, as follows: (j) McVity v. Tranouth, [1908] A.C. 60, reversing 36 Can. S.C.R. 455. (k) In re Jennens, 1880, 50 L.J. Ch. 4, 16 R.C. 359;...
-Sec. 273. Part payment
The English statute of 1833, 3 & 4 W. 4 c. 27, also contained a section limiting the time within which an action might be brought to recover any sum of money secured by any mortgage or lien or otherwi...
-Sec. 274. Effect of bringing action
The bringing of an action for possession will prevent the further lapse of time from being a bar to the plaintiff's claim (l) unless the action is afterwards discontinued or the writ of summons is not...
-Sec. 275. Disabilities in case of action to recover land
In the English statute of 1883, 3 & 4 W. 4, c. 27, the gen- . eral twenty-year period of limitation for entry or action was subject to an extension, in favour of a person who was under disability or s...
-Sec. 276. Extinguishment of right and title
Provision was made by the English statute of 1833, 3 & 4 W. 4, c. 27, s. 34, for the extinguishment of the right and title of the person who failed to make an entry or bring an action within the statu...
-Sec. 278. Time not extended by reason of disability
It was held by Jessel, M.R., in Kinsman v. Rouse, (u), that the time within which a mortgagor or any person claiming through him might sue for redemption was not to be extended by reason of his being ...
-Sec. 279. Nature of possession of mortgagee
Time will not run against the mortgagor so long as the possession of the mortgagee may be referred to another title and is not adverse. Thus, a person to whom property was mortgaged by the tenant for ...
-Sec. 280. Possession of part of mortgaged lands
The rule which prevailed prior to 3 & 4 W. 4, c. 27, that no lapse of time barred the right of the mortgagor to redeem the whole of the mortgaged lands if he held possession of part (t) was abolished ...
-Sec. 281. Acknowledgment of title by mortgagee
In England prior to the passing of the statute 3 & 4 W. 4, c. 27, a slight act or admission, even oral, on the part of the mortgagee, constituted a sufficient acknowledgment of the mortgagor's title t...
-B. The Land Titles Acts. Sec. 282. Possession adverse to registered title
It is provided in Ontario by the Land Titles Act, R.S.O. 1914, c. 126, s. 29, as follows: 29.- (1) A title to any land adverse to or in derogation of the title of the registered owner shall not be ac...
-Part VII. Mortgage Accounts. Chapter XXVII. Accounting Between Mortgagor and Mortgagee
Sec. 291. Right of mortgagor to an account, p. 573. Sec. 292. Taking of mortgage account, p. 574. Sec. 293. Items included in the account, p. 575. Sec. 294. Accounting by mortgagor in possession, p...
-Sec. 292. Taking of mortgage account
The proceedings on a reference are governed in Ontario by rules 402 to 459. Some of the rules especially relating to the taking of accounts are as follows (d): 411. The master may cause parties to be...
-Sec. 293. Items included in the account
The ordinary items of the account where the mortgagee has not taken possession (g) are the principal, the interest and the costs, and in addition there may be items of expense incurred by the mortgage...
-Sec. 294. Accounting by mortgagor in possession
So long as the mortgagor or any person holding through or under him remains in possession, either by virtue of a provision in the mortgage authorizing him to do so until default or because the mortgag...
-Sec. 295. Waste by mortgagor in possession
A mortgagor in possession of the mortgaged property is not liable to the mortgagor for allowing the property to deteriorate, but he must not commit any act which is destructive or permanently injuriou...
-Chapter XXVIII. Mortgagee in Possession
Sec. 301. When mortgagee is deemed to be in possession, p. 580. Sec. 302. Rights of mortgagee in possession, p. 582. Sec. 303. Right to reimbursement for expenses incurred, p. 584. Sec. 304. Obliga...
-Sec. 302. Rights of mortgagee in possession
A mortgagee lawfully in possession has, generally speaking, the rights of any owner of land for the purposes of the due management and preservation of the property, subject to the liability to redempt...
-Sec. 303. Right to reimbursement for expenses incurred
When during the continuance of the mortgage, the mortgagee takes possession of the mortgaged property, he may spend such money as is necessary (r) Moore v. Shelley, 1883, 8 App. Cas. 285; Bagnall v....
-Sec. 304. Obligations of mortgagee in possession
The mortgagee, having asserted his common law right to possession and having taken the management of the property out of the mortgagor's hands, must himself assume the responsibilities of management. ...
-Sec. 305. Liability for occupation rent
It is provided in Ontario by rule 410 that upon an order of reference the master may set occupation rent (r). If a mortgagee is himself in actual occupation of any portion of the mortgaged property...
-Sec. 306: Liability for rents and profits
It is provided in Ontario by rule 410 that under an order of reference the master may, inter alia, take account of any rents and profits received or which, but for wilful neglect or default, might hav...
-Sec. 307. Liability for waste or deterioration
A mortgagee in possession is bound to keep the premises in reasonable repair so far as the rents and profits will enable him to do so, and he will be liable for deterioration occasioned by his gross o...
-Sec. 308. Manner of taking accounts
It is provided in Ontario by rule 410 that under an order of reference the master may take the account with rests or otherwise (w). Taking an account with rests means either that the accounting party...
-Chapter XXIX. Interest
Sec. 311. When interest is payable, p. 599. Sec. 312. Rate of interest until maturity, p. 600. Sec. 313. Rate of interest after maturity, p. 602. Sec. 314. Increased rate after default, p. 606. ...
-Sec. 312. Rate of interest until maturity
It is provided by the Interest Act, R.S.C. 1906, c. 120, s. 2, as follows: 2. Except as otherwise provided by this or by any other Act of the Parliament of Canada, any person may stipulate for, allow...
-Sec. 313. Rate of interest after maturity
Subject as already stated (p) a mortgagee may stipulate for the payment after default of any rate of interest whatsoever not exceeding the rate of interest payable before default (q), but in order to ...
-Sec. 314. Increased rate after default
A stipulation in a mortgage that the rate of interest shall be increased if interest at the normal rate is not punctually paid is regarded as a penalty against which equity will grant relief, but a st...
-Sec. 315. Calculation and apportionment of interest
Interest on a mortgage though payable at fixed times is deemed to accrue from day to day (u), and as between persons entitled in succession to the interest it will be apportioned (v). Where interest...
-Sec. 316. Compound interest
Formerly a stipulation for capitalising interest in arrear, turning it into principal and charging interest upon it, however formally expressed, was not allowed to prevail in equity (f), but a stipula...
-Sec. 317. Interest in lieu of notice
The Interest Act, R.S.C. 1906, c. 120, also contains a provision (s. 10) that whenever any principal money or interest secured by a mortgage of real estate is not, under the terms of the mortgage, pay...
-Sec. 318. Legislative jurisdiction as to interest and mortgages
By s. 91 of the British North America Act, 1867, exclusive legislative authority with regard to Interest is conferred upon the dominion parliament, and by s. 92 of the same statute, in each province...
-Chapter XXX. Costs
Sec. 321. General principles, p. 617. Sec. 322. Costs of negotiating and completing loan, p. 618. Sec. 323. Costs incurred to protect the security, p. 619. Sec. 324. Costs of mortgage action, p. 62...
-Sec. 322. Costs of negotiating and completing loan
As the mortgagee is entitled, in the taking of the mortgage account, to be indemnified only so far as he has acted reasonably as mortgagee, he is not entitled, in the absence of special agreement, to ...
-Sec. 323. Costs incurred to protect the security
The mortgagee is entitled to add to his mortgage debt all costs reasonably incurred by him to preserve the mortgaged property or protect the security, and to assert a charge for such costs in priority...
-Sec. 324. Costs of mortgage action
The right of a mortgagee to add to his mortgage debt costs incurred by him in preserving the mortgage property or protecting the mortgage security is based on the maxim that he who seeks equity must d...
-Sec. 325. Taxation of costs
It is provided in Ontario by the Mortgages Act, R.S.O. 1914, c. 112, s. 30, that where, pursuant to any condition Or proviso contained in a mortgage, there has been made or given a demand or notice ei...
-Part VIII. Statutory Or Contractual Rights. Chapter XXXI. Sale under Power of Sale
Sec. 331. Origin of the power of sale, p. 631. Sec. 332. Statutory implied power of sale, p. 633. Sec. 333. Contractual power of sale, p. 638. Sec. 334. Statutory short form of power of sale, p. 64...
-Sec. 331. Origin of the power of sale
At common law a mortgage created in favour of the mortgagee an estate upon condition, and the mortgagor's interest in the land was liable to forfeiture on default in strict performance (a). In equity,...
-Sec. 332. Statutory implied power of sale
In England prior to the passing of Lord Cranworth's Act (g) In re Chawner's Will, 1869, L.R. 8 Eq. 569. (h) 1861, 29 Beav. 123 at p. 128. (i) McKay v. Reed, 1864, 1 Chy. Ch. (U.C.) 208. (j) Ashton v....
-Sec. 333. Contractual power of sale
In Ontario the ordinary practice is to use the short form of power of sale provided by the Short Forms of Mortgages Act (t) with such qualifications and additions as may seem advisable. An express po...
-Sec. 334. Statutory short form of power of sale
The short form of power of sale provided in Ontario by the Short Forms of Mortgages Act (x) is as follows: Provided, that the said mortgagee on default of payment for may on notice enter on and lease...
-Sec. 335. Qualifications of the short form of power of sale
The Short Forms of Mortgages Act provides that the parties may introduce into, or annex to any of the short forms any express exceptions therefrom or express qualifications thereof; and the like excep...
-Sec. 336. Who may exercise the power
The assignment of the morgaged land and of the mortgage debt does not enable the assignee to exercise a power of sale in the mortgage unless the power is by its terms exercisable by the assigns of the...
-Sec. 337. When the power may be exercised
In England under Lord Cranworth's Act (m) a mortgage could not sell until after the expiration of one year from the time when the principal had become payable or unless interest was in arrear for six ...
-Sec. 338. Power of sale without notice
It has sometimes been said that a power of sale without notice is oppressive (y), but the validity of such a power has long been established (z). It is reasonable and not unusual for a mortgagee who h...
-Sec. 339. Form and service of notice
It depends upon the terms of the power of sale whether notice of exercising the power need be given or by whom or to whom, when and in what manner notice need be given (e). If notice is required to b...
-Form and service of notice. Continued
A sale under a power requiring notice to be given will not be valid if there is no person in existence to whom notice can be given: if, therefore, the terms of the power require that notice shall be s...
-Sec. 340. Concurrent proceedings by the mortgagee
A mortgagee may combine in one action claims for foreclosure or sale, for possession of the mortgaged land and for payment of the mortgage money (r). A mortgagee who has brought an action to recover ...
-Sec. 341. Conduct of the sale
A mortgagee exercising a power of sale is not a trustee for the mortgagor except as regards the surplus of the purchase money arising from the sale after the mortgage debt is satisfied. This is so whe...
-Conduct of the sale. Continued
Where the terms of the power prescribe that the sale shall be by public auction only, a sale by private contract will not be valid (j). It would be inadvisable for the mortgagee to depart from the we...
-Sec. 342. Who may purchase
A mortgagee with power of sale, except where in a judicial sale he obtains the leave of the court to bid, cannot sell to himself either alone or with others; nor can he sell to a trustee for himself. ...
-Sec. 343. The conveyance and its effect
If the mortgage is made in pursuance of the Short Forms of Mortgages Act and contains a power of sale in the form provided by that statute (q), the mortgagee is empowered to sell and absolutely dispos...
-Sec. 344. Application of the proceeds
Under the terms of the extended form of power of sale which is the equivalent of the short form provided by the Short Forms of the Mortgages Act, the mortgagee holds the moneys arising from the sale u...
-Sec. 345. Power of sale under the Land Titles Acts
In Ontario it is provided by the Land Titles Act, R.S.O. 1914, c. 126, s. 35, as follows: 35. Subject to any entry to the contrary on the register the registered owner of a charge with a power of sal...
-Chapter XXXII. Appointment of Receiver
Sec. 351. Receiver for equitable mortgagee, p. 686. Sec. 352. Appointment under the Judicature Act, p. 688. Sec. 353. Mortgagee's statutory or express power to appoint, p. 690. Sec. 354. Liability f...
-Sec. 352. Appointment under the Judicature Act
Formerly the court would not appoint a receiver on the application of a mortgagee who had the legal estate, such appointment being unnecessary as the mortgagee by virtue of the legal estate could take...
-Sec. 353. Mortgagee's statutory or express power to appoint
In England it is provided by the Conveyancing Act, 1881, (b), as follows: 19.- (1) A mortgagee, where the mortgage is made by deed, shall, by virtue of this Act, have the following powers to the like...
-Sec. 354. Liability for acts or defaults of receiver
In the case of statutory authority or express authority in a mortgage to appoint a receiver, it is usually provided either that the receiver shall be deemed to be the agent of the mortgagor (e) or tha...
-Sec. 355. Powers and liabilities of receiver
If a person is appointed by the court to be receiver and manager of a company, he is not the agent of the company. The company does not appoint him and cannot dismiss him, and he is not bound to obey ...
-Chapter XXXIII. Attornment and Distress
Sec. 361. Express power to distrain, p. 694. Sec. 362. Tenancy created by attornment, p. 696. Sec. 363. Distress in case of attornment, p. 700. Sec. 364. On what goods the mortgagee may distrain, p...
-Sec. 362. Tenancy created by attornment
It is well settled that the parties to a mortgage of real property may agree that in addition to their principal relation as mortgagor and mortgagee they shall also as regards the mortgaged lands stan...
-Sec. 363. Distress in case of attornment
If a tenancy is validly created by attornment the mortgagee will have the ordinary rights of a landlord, including the right of distress (e), not only as between the mortgagee and the mortgagor but in...
-Sec. 364. On what goods the mortgagee may distrain
If a mortgagee has a right of distress by virtue of a tenancy created by attornment (w), there are certain limitations imposed by statute upon his right. It is provided in Ontario by the Landlord and...
-Sec. 365. What arrears may be recovered by distress
It is provided in Ontario by the, Mortgages Act, R.S.O. 1914, c. 112, s. 14, as follows: 14.- (1) As against creditors of a mortgagor, or person in possession of mortgaged premises under a mortgagor...
-Sec. 366. Attornment under the Land Titles Acts
It has been held in Saskatchewan (l), in accord with an earlier decision in Alberta (m), that an attornment clause in a mortgage under the Land Titles Act, though it may create contractual rights betw...
-Chapter XXXIV. Fire Insurance
Sec. 371. Insurable interest, p. 712. Sec. 372. Right or obligation to insure, p. 714. Sec. 373. Insurance in the name of the mortgagor, p. 716. Sec. 374. Mortgage clause in insurance policy, p. 72...
-Sec. 372. Right or obligation to insure
It is usual in Ontario to insert in a mortgage the short form of covenant provided by the Short Forms of Mortgages Act, as follows: And that the said mortgagor will insure the buildings on the said ...
-Sec. 373. Insurance in the name of the mortgagor
Usually, when mortgaged property is insured, the insurance is effected in the name of the mortgagor, and a clause is inserted in the policy that the loss, if any, shall be payable to the mortgagee as ...
-Sec. 374. Mortgage clause in insurance policy
In the case of insurance effected by a mortgagor upon mortgaged property it is now a common practice in Canada to insert in or attach to the policy a so-called mortgage clause, safeguarding the mort...
-Sec. 375. Insurance in the name of the mortgagee
A mortgagee, unpaid vendor or other person having a limited interest in property may effect insurance either (1) on his own interest merely, or (2) on his own interest as well as the interests of all ...
-Sec. 376. Application of insurance money
It is provided by the Mortgages Act, R.S.O. 1914, c. 112, s. 6, as follows: 6.- (1) All money payable to a mortgagor on an insurance of the mortgaged property, including effects, whether affixed to t...
-Chapter XXXV. The Short Forms of Mortgages Act
Sec. 381. Short forms provided by statute, p. 731. Sec. 382. Schedule A, p. 732. Sec. 383. Schedule B, p. 733. Sec. 384. Implied covenants, p. 738. Sec. 381. Short forms provided by statute R....
-Sec. 382. Schedule A
Schedule A to the Short Forms of Mortgages Act is as follows: Form of Mortgage. This Indenture, made the day of one thousand and nine hundred and , in pursuance of The Short Forms of Mortgages Act, ...
-Sec. 383. Schedule B
Schedule B. to the Short Forms of Mortgages Act is as follows:- COLUMN ONE COLUMN TWO 1. And the said wife of the said mortgagor hereby bars her dower in the said lands. [The...
-Sec. 384. Implied covenants
It is provided by the Mortgages Act, R.S.O. 1914, c. 112, s. 7, as follows: 7. There shall, in the several cases in this section mentioned, be deemed to be included, and there shall in those several ...
-Chapter XXXVI. The Mortgagors' and Purchasers' Relief Act
Sec. 391. Proceedings not to be taken without leave, p. 742. Sec. 392. Excepted cases, p. 744. Sec. 393. Powers of the judge, p. 746. Sec. 394. Retroaetive operation, p. 748. Sec. 395. Power to ma...
-Sec. 392. Excepted cases
4.- (1) Subject to the provisions hereinafter contained, sections 2 and 3 shall not apply to any contract for sale or purchase or to any mortgage [made or entered into after the 4th day of August, 191...
-Sec. 393. Powers of the judge
5.- (1) On any application the Judge may grant the leave applied for, or if he is of opinion that time should be given to the person liable to make any payment on the ground that he is unable immediat...
-Sec. 394. Retroactive operation
12.- (1) This Act shall take effect as from the fourth day of August, 1914, but where any' proceeding has been taken or act done or any event has taken place since the fourth day of August, 1914, and ...
-Sec. 395. Power to make rules
13. The powers of the Supreme Court to prescribe rules shall apply to the making of rules for carrying into effect the provisions of this Act and for regulating the practice and procedure under it whe...









TOP
previous page: Principles Of The Law Of Real Property | by Joshua Williams
  
page up: Real Estate Books
  
next page: The Rating Of Land Values | by Arthur Wilson Fox