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 mortgages to one mortgagee, p. 141. Sec. 85. Case of mortgages to different mortgagees, p. 142. Sec. 86. Consolidation under the Registry Act, p. 145. Sec. 87. The doctrine of tacking and the Registry Act, p. 147. Sec. 88. So-called tacking to avoid circuity of action, p. 149.

Sec. 81. The doctrine of consolidation

A mortgagee who holds two or more distinct mortgages upon different parcels of land made by the same mortgagor, if the mortgages are no longer redeemable at law but are redeemable only in equity, may, within certain limits, and against certain persons,"consolidate" them, that is, treat them as one, and decline to be redeemed as to any unless he is redeemed as to both or all (a). This doctrine of consolidation (6)

(a) Cf. Jennings v. Jordan, 1881, 6 App. Cas. 698, at p. 700.

(b) The doctrine is one of the equitable rules relating to the redemption of mortgages and belongs properly to chapter 3, Legal Mortgage in Equity, but it is discussed here in a separate chapter because this arrangement affords a more convenient opportunity of pointing out the effect of the Registry Act upon the doctrine of consolidation and of emphasizing the distinction between the doctrines of consolidation and tacking respectively.

was formulated (c) in Shuttleworth v. Laycock (d) in 1684 and in Pope v. Onslow (e) in 16S2. The doctrine in its simplest and probably its original form is that if a person has mortgaged two separate parcels of land to one mortgagee to secure two different debts, and has made default as to both mortgages so that his estates have become forfeited at law, the debtor is not personally permitted to insist upon paying one debt and redeeming one mortgage without paying the other debt also (e2).

Consolidation is founded on the equitable maxim that he who seeks equity must do equity.

"The whole doctrine of consolidation, whatever may have been the particular circumstances under which it has been applied to different cases, arises from the power of the court of equity to put its own price upon its own interference as a matter of equitable consideration in favour of any suitor. At law, independently of a legal estate, when the power of redemption given by original contract is gone, then a person comes into equity to have assistance from the courts of equity and asks to redeem upon what are called equitable considerations, and then the court of equity says:-"This is the price upon which we give you the relief you seek, namely, on your paying all that is due.'" (f)

(c) By Lord Keeper Bridgman. See also the case of Bovey v Shipwith, 1671, 1 Cas. in Ch. 201, infra, Sec. 87, involving both consolidation and tacking. The doctrine of tacking (infra, Sec. 87) was formulated by Chief Baron Hale, Lord Keeper Bridgman and Baron Rainsford in Hedworth v. Primate, 1662, Hardres 318, and March v. Lee, 1670, 2 Ventr. 337, 18 R.C. 523. It is worthy of note that these two doctrines which, in the opinion of modern legislators, show an almost excessive respect for legal rules, were founded by judges who, though they were sitting in equity tribunals, were in fact rather common lawyers than equity judges. Cf. Jerks, Short History of English Law, pp. 220, 221.

(d) 1 Vern. 244.

(e) 2 Vern. 286.

(e2) Pledge v. White, [1896] A.C. 187, at pp. 192 ff., 18 R.C. 264, at pp. 269 ff., where the extension of the doctrine to transferees of the mortgages and to assignees of the equity of redemption is discussed.

(f) Cummins v. Fletcher, 1889, 14 Ch.D. 699, at p. 708.

The right of consolidation belongs to the mortgagee, not to the mortgagor. The latter cannot compel the former to consolidate (g). It may be asserted by the mortgagee not only in a redemption action, but also in a foreclosure action. The latter is merely an action brought for the purpose of compelling the mortgagor to redeem within a limited time and of depriving him of his equity of redemption if he does not redeem within such time, (h), and the redemption if it takes place in a foreclosure action is subject to the same equitable conditions as if it took place in a redemption action (i).

The right to consolidate, unlike the right to tack, does not depend upon the possession of the legal estate and the right may exist although the securities comprise properties of different natures (j). A mortgage of real estate can be consolidated with a mortgage of personal estate (k), and a legal mortgage can be consolidated with an equitable mortgage (I), and an equitable mortgage with another equitable mortgage (m).