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. 161. Devolution of equity of redemption

The mortgagor's interest in mortgaged land was at common law merely a right to get back the estate upon performance of the condition subject to which it was conveyed by the mortgage (a), but in equity it was regarded for many purposes as if it were an estate in the land (6). Although the mortgagor was not seised of the land (c), nevertheless equity followed the law and attached to the equity of redemption many of the incidents and characteristics belonging to legal estates. The equity of redemption might be mortgaged, conveyed or devised as if it were the legal estate. On the death of the owner intestate it devolved like the legal estate (d)-so much so that if the legal ownership of the land was subject to some peculiar custom of descent, such as that applicable to land held in borough-english or gavelkind, the equitable interest devolved according to the custom(e).

(a) See chapter 2, Mortgage at Common Law, Sec. 12.

(b) See chapter 3, Legal Mortgage in Equity, Sec. Sec. 21, 28.

(c) Copestake v. Hoper, [1908] 2 Ch. 10. See further reference to this case in chapter 3, Sec. 29.

(d) As to the present mode of devolution in Ontario, see the Devolution of Estates Act, in Sec. 162, infra.

(e) See In re Hudson, Cassels v. Hudson, [1908] 1 Ch. 655. Apart from statute, if the assignee of the equity of redemption pays off a mortgage of land and takes it with a declaration against merger, even though it is expressly stated in the declaration that the mortgage is kept alive for the purpose of protecting the assignee and for no other purpose whatever, the mortgage would devolve as personalty while the equity would devolve as realty. See In re Gibbon, Moore v. Gibbon, [1909] 1 Ch. 367; Strahan, Law of Mortgages, 2nd ed., pp. 52-53.

Apart from statute, lands held by any person in fee simple upon any trust or by way of mortgage are subject to escheat (f), but an equitable estate or interest does not escheat for such an estate or interest is a mere creature of equity and not a subject of tenure (g). In England it is provided by the Intestates Estates Act, 1884, (h), that where a person dies without an heir and intestate in respect of any real estate consisting of an equitable estate or interest in any corporeal hereditament, the law of escheat shall apply in the same manner as if such estate or interest were a legal estate in corporeal hereditaments. There appears, however, to be no statute to similar effect in any province of Canada (i), and upon the death of a mortgagor without heirs the mortgagee would therefore hold absolutely for his own benefit, subject to payment of the debts of the mortgagor, whose personal representative might redeem (j).

(f) See chapter 13, Persons entitled on Death of the Mortgagee, Sec. 121.

(g) Williams, Real Property, 21st ed., 191; Gaillard v. Hawkins, 1884, 27 Ch.D. 298.

(h) 47 & 48 V. c. 71, s. 4.

(i) See article by Walter S. Scott in 37 C.L.T. 764 (November, 1916).

(j) Beale v. Symonds, 1853, 16 Beav. 406; Coote, Law of Mortgages, 8th ed., vol. 1, p. 666; Fisher, Law-of Mortgages, 6th ed., pp. 739, 740. Whether the result would be the same if the mortgagee were merely an equitable mortgagee is more doubtful. Underhill, Law of Trusts, 7th ed., p. 210, submits that on the principle of Onslow v. Wallis, 1849, 1 Mac. & G. 506, the result would be the same. It has been decided that where the fee out of which a mortgage term has been carved escheats to the lord he may redeem. Downe (Viscount) v. Morris, 1844, 3 Hare 394; Lewin, Law of Trusts, 12th ed., p. 277; Fisher, op. cit., p. 740.