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 mortgagee, p. 222.

Sec. 125. Transmission under the Land Titles Acts, p. 225.

Sec. 121. Mortgage security is personalty

It has already been pointed out that if the mortgagee died before the day fixed for payment of the mortgage the money, as part of his personal estate, was at law payable to his executor and not to his heir, unless the heirs were named, and that if the day for payment were past the money was in equity payable to the executor even though the heirs were named (a).

It has long been settled that a mortgage security is personal estate (b), and so long as the equity of redemption is not extinguished the mortgagee's beneficial interest continues to be personal estate, notwithstanding that he may have entered into possession (c). Even apart from the Devolution of Estates Act it devolves on the personal representative and would not pass under a general devise of real property (d).

(a) See chapter 3, Legal Mortgage in Equity, Sec. 21. (b) 21 Halsbury, Laws of England, p. 182, note (q).

(c) Noy v. Ellis, 1676, 2 Cas. in Ch. 220; In re Loveridge, Drayton v. Loveridge, [1902] 2 Ch. 859. When the equity of redemption of freehold is extinguished, the mortgagee's interest ceases to be personalty. In re Loveridge, Pearce v. Marsh, [1904] 1 Ch. 518.

(d) 21 Halsbury, Laws of England, p. 184; Strode v. Russel, 1708, 2 Vern. 621; Casborne v. Scarfe, 1737, 1 Atk. 603, reporter's note at p. 605, 18 R.C. 369, at p. 373.