(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 re Music Hall Block, Dumble v. Mcintosh, 1884, 8 O.R. 225. (o) Re Moore, 1878, 8 O.P.R. 471.

When the discharge has been registered, it operates as a conveyance, according to the words of the section, of the original estate of the mortgagor, whatever that was, and does not give a new estate derived from the mortgagee (r).

As a mortgage in fee simple executed by a tenant in tail operates to vest the fee simple in the mortgagee it was thought that the registration of a discharge of such a mortgage would only revest an estate tail as being the original estate of the mortgagor (s), but it has been held that the discharge in such case has the effect of reconveying the land in fee simple (t).

A mortgagor or other person entitled to the equity of redemption has a right to obtain at his own expense from the mortgagee a reconveyance of the mortgaged premises, including a covenant against incumbrances. He is not obliged to accept the simple discharge of mortgage prescribed by the statute (u). The purchaser of a mortgaged estate paid the amount due on the mortgage to the mortgagee, who executed a statutory discharge of the incumbrance, which recited that the money due upon the mortgage had been paid by the mortgagor, and refused either to sign a discharge stating correctly the name of the purchaser as the person paying, or to execute a reconveyance in his favour, although the purchaser offered to furnish satisfactory proof, if desired, that he was the owner of the equity of redemption. The court, on a bill filed for that purpose, ordered the mortgagee to execute the reconveyance, and pay the costs of the suit (v).

(p) Dilke v. Douglas, 1880, 5 O.A.R. 63, at p. 70. (q) Bigelow v. Staley, 1864, 14 U.C.C.P. 276. (r) Carter v. Grasett, 1888, 14 O.A.R. 685.

(s) Re Dolsen, 1872, 4 U.C. Chy. Ch. 36; Lawlor v. Lawlor, 1881, 6 O.A.R. 312.

(t) Lawlor v. Lawlor, 1882, 10 Can. S.C.R. 194. (u) McLennan v. McLean, 1879, 27 Gr. 54.

It is immaterial whether the name of the mortgagor, or of the person satisfying the mortgage, is inserted in the certificate, or whether the name is altogether omitted (w). Upon registration of the discharge the estate will vest, not necessarily in the person whose name is inserted in the certificate, or in the person paying off the mortgage, but in the person who is entitled to the legal estate or who has the best right to call for it (x).

Thus a mortgagor in his lifetime paid part of the mortgage moneys, and after his death his widow paid the remainder on behalf of his estate. The discharge recited that the mortgagor had satisfied the moneys due on the mortgage. It was held that the estate vested in the heirs-at-law, and that the misrecital was of no consequence (y).

Where a mortgagor conveyed the equity of redemption subject to a mortgage, a discharge of which was registered on the same day as the deed, it was held that the deed must be. assumed to have been delivered before it was registered, and the discharge of the mortgage on registration operated as a reconveyance to the assignee of the mortgagor within the meaning of the act (z).

In some circumstances where a person pays off an existing first mortgage and registers a discharge of it, he may be entitled to be subrogated to the position of the first mortgagee as being the person best entitled to call for the legal estate in priority to the second mortgagee (a).

(v) McLennan v. McLean, supra.

(w) McLennan v. McLean, supra; Carrick v. Smith, 1874, 35 U.C.R. 348.

(x) Hosking v. Smith, 1882, 13 App. Cas. 582; Robinson v. Trevor, 1883, 12 Q.B.D. 423; Fourth City Mutual Benefit Building Society v. Williams, 1879, 14 Ch.D. 140; Crosbie-Hill v. Sayer, [1908] 1 Ch. 866.

(y) Carrick v. Smith, 1874, 35 U.C.R. 348.

(z) Imperial Bank of Canada v. Metcalfe, 1886, 11 O.R. 467.

A mortgage was held by an assignee for the benefit of the mortgagee who assigned it, and the mortgagor, without notice of such assignment, paid the mortgagee and obtained from him a discharge under the statute. The court held the payment good, and ordered the assignee to execute a release, it being doubtful whether under the circumstances the discharge from the mortgagee would revest the property in the mortgagor (b).

An assignment of a mortgage for $1150 recited that the assignee had lent $1000 to the assignor for one year, on the promissory note of the assignor, and that the assignor had agreed to execute the assignment as collateral security. The assignor assigned the mortgage, the sum of $1150 and interest, and the benefit of all the powers, covenants and provisoes contained in the mortgage, with power to use the assignor's name, etc., and granted the lands mentioned in the mortgage, subject to the terms of the mortgage and subject to a special covenant by which the assignee agreed to reassign the mortgage and the mortgage money and to reconvey the lands on repayment of the sum of $1000 and interest. It was held that the assignee had the right to receive the whole of the mortgage money and give a discharge which upon registration would revest the mortgaged lands in the mortgagor (c).

A mortgage, on her own property, made by a wife to the plaintiffs, to which the husband was a party, but without conveying or joining in the covenants, was given as collateral security for the payment of certain notes made by the husband and wife to secure the husband's indebtedness. Subsequently another mortgage was given by the wife which became vested in the defendants, the bank. Further liabilities were incurred by the husband to the plaintiffs, and payments were made on account, and subsequently the whole indebtedness was adjusted, the plaintiffs taking in payment the notes of the husband alone, maturing at several future dates, in substitution of the original notes which the plaintiffs agreed to cancel and deliver up. Some time after this the wife executed an agreement recognizing the mortgage to the plaintiffs as existing and as security for a certain sum. It was held that the effect of what took place was to extinguish the liability on the notes secured by the mortgage to the plaintiffs, and the mortgage itself given as collateral security therefor, and that the right to have it discharged enured to the benefit of the holders of the second mortgage, and that such right was not affected by the agreement subsequently entered into between the wife and the plaintiffs (d).

(a) Sangster v. Cochrane, 1884, 28 Ch. D. 298, and cases there cited; see also Brown v. McLean, 1889, 18 O.R. 533, and chapter 8, The Registry Act, Sec. 78.

(b) McDonough v. Dougherty, 1862, 10 Gr. 42; see also Enger-son v. Smith, 1862, 9 Gr. 16.

(c) Re Bland and Mohun, 1913, 30 O.L.R. 100, 16 D.L.R. 716. It is submitted, however, that a reassignment of the mortgage to the original mortgagee and a discharge by him would be more regular. As to the requisites of a valid assignment, see chapter 11, Assignee of Mortgage, Sec. 102.