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 purchase at sheriff's sale, p. 264.

Sec. 151. Rights of execution creditors

The question of priority under the Registry Act (a) and under the Land Titles Acts (b) as between an execution creditor and a mortgagee or purchaser of the land has already been discussed. Questions of limitation of actions or proceedings will be discussed later (c). In other respects the rights and remedies of an execution creditor of the mortgagor are discussed in the present chapter.

Prior to 1849 in Upper Canada an equity of redemption could not be sold under execution (d). In that year the statute 12 V. c. 73 was passed, authorizing the seizure, sale and conveyance of the interest of the mortgagor in mortgaged lands and tenements under a writ of execution against the lands and tenements of the mortgagor (e). Under this statute it was held that the equity of redemption could not be sold after the death of the mortgagor under an execution against the lands and tenements of the mortgagor (f). Consequently in 1863 the statute 27 V. c. 13 was passed, authorizing the sale of the equity of redemption in a freehold mortgage of real estate under an execution against the lands and tenements of the owner of the equity of redemption either in his lifetime or in the hands of his executors or administrators after his death (g).

(a) See chapter 8, The Registry Act, Sec. 76.

(b) See chapter 10, The Land Titles Acts, Sec. 96.

(c) See chapter 26, Limitation of Actions, Sec. 264.

(d) Simpson v. Smyth, 1846, 1 U.C.E. & A. 9. See chapter 5, Law and Equity in Upper Canada, Sec. 32.

(e) C.S.U.C. 1859, c. 22, s. 257 (Common Law Procedure Act). See now s. 31, sub-s. (1), of the Execution Act, in Sec. 152, infra.

(f) Bank of Upper Canada v. Brough, 1862, 2 U.C.E. & A. 95; Lowell v. Bank of Upper Canada, 1863, 10 Gr. 57.

Under the last mentioned statute it was held that a valid sale could not be made where there were two mortgages held by different persons upon the same property (h). This decision was doubted in a later case (i), and the question whether an equity of redemption subject to two or more mortgages could be sold under an execution remained doubtful (j) until 1915, when the statute 5 G. 5, c. 20, s. 10, was passed, authorizing the sale under an execution of the equity of redemption where there are more mortgages than one in the same manner as in the case of land subject to one mortgage only (k).

If the equity of redemption cannot be sold under a writ of execution, a receiver may be appointed by way of equitable execution at the instance of a judgment creditor (I).

Execution creditors of the mortgagor are "assigns" and are entitled to notice of sale under a power of sale the terms of which require notice to be given to assigns of the mortgagor (m). They are encumbrancers upon the interest of the mortgagor and upon the proceeds in ease of sale, and are entitled to payment thereout according to priority, and it has been held that if a mortgagee sells the land and pays off an encumbrancer who holds, to his knowledge, collateral security, the mortgagee must take over the collateral security for the benefit of subsequent encumbrancers, including execution creditors, and is liable to them for the value thereof if he fails to do so (0).

(g) See now s. 31, sub-s. (2), of the Execution Act, in Sec. 152, infra.

(h) Donovan v. Bacon, 1869, 16 Gr. 472, note; Wood v. Wood, 1869, 16 Gr. 471.

(i) Samis v. Ireland, 1879, 4 O.A.R. 118.

(j) Glover v. Southern Loan and Savings Co., 1901, 1 O.L.R. 59; Canadian Mining and Investment Co. v. Wheeler, 1902, 3 O.L.R. 210.

(k) See s. 31, sub-s. (3), of the Execution Act, in Sec. 152, infra.

(l) Donovan v. Bacon, 1869, 16 Gr. 472, note; Kerr v. Styles, 1879, 26 Gr. 309; Canadian Bank of Commerce v. Rolston, 1902, 4 O.L.R. 106.

(m) Re Abbott and Medcalf, 1891, 20 O.R. 299. See chapter 31, Sale under Power of Sale, Sec. 339.

A mortgagee who pays off a prior execution has a lien in respect of the amount paid as against subsequent execution creditors (p).