A sale under a power requiring notice to be given will not be valid if there is no person in existence to whom notice can be given: if, therefore, the terms of the power require that notice shall be served upon the personal representative of the mortgagor, the power will not be exercisable until one is appointed (w).

The purchaser of the equity of redemption is entitled to notice, and where the equity of redemption has been sold in several parcels to different persons who are entitled to redeem in respect of their own parcels, these different persons are entitled to notice (x).

If the power requires notice to be given to the mortgagor or his assigns, and there is a second mortgage made by the mortgagor, it is not sufficient to give notice to the mortgagor alone, but the second mortgagee also is entitled to notice, and may recover damages from the first mortgagee if he exercises the power of sale without giving such notice. The words are to be read as meaning "the mortgagor and his assigns" (y).

(u) See s. 7 of the Devolution of Estates Act, quoted in chapter 13, Persons entitled on Death of the Mortgagee, Sec. 123.

(v) Re Martin and Merritt, supra; Girardot v. Curry, 1916, 38 O.L.R. 350, 33 D.L.R. 272.

(w) Parkinson v. Hanbury, 1867, 1 Dr. & Sm. 143, 2 DeG. J. & S. 152, L.R. 2 H.L. 1, 18 R.C. 411.

(x) Buckley v. Wilson, 1861, 8 Gr. 566.

(y) Hoole v. Smith, 1881, 17 Ch.D. 434.

The plaintiff had entered into an agreement in writing with the second mortgagee and the mortgagor whereby he was entitled to enforce a transfer of all their interest to him. The first mortgagee, with express notice of this agreement, made a sale under the power in his mortgage, without giving notice to the plaintiff. It was held that the plaintiff was entitled to notice and the sale was set aside (z).

If the owner of lands makes a lease and subsequently mortgages the lands the mortgagee is in the position of assignee of the reversion on the lease and takes the lands subject to the lease. If, however, the mortgagor after making the mortgage leases the lands, the lessee is a purchaser of the equity of redemption pro tanto and is entitled to redeem. He is therefore entitled to notice of sale (a).

Execution creditors of the mortgagor, whose writs are in the sheriff's hands at the time of giving notice of sale to the mortgagor, are assigns and as such are entitled to notice (b). Execution creditors of the mortgagee are not entitled to notice of sale (c). They have, however, such an interest in the due exercise of the power that the court will grant them relief against a mortgagee exercising the power to their disadvantage (d).

Where mortgagees sold the mortgaged premises without notice to a person who was surety for a part of the debt, it was held that they were liable as between themselves and the surety for the full value of the property (e).

(z) Stewart v. Rowson, 1892, 22 O.R. 533.

(a) Tarn v. Turner, 1888, 39 Ch.D. 456; see Anderson v. Stevenson, 1888, 15 O.R. 563; Martin v. Miles, 1883, 5 O.R. 404; Collins v. Cunningham, Cunningham v. Drysdale, 1892, 21 Can. S.C.R. 139 at p. 149.

(b) Re Abbott and Medcalf, 1891, 20 O.R. 299.

(c) But see Sanderson v. Ince, 1859, 7 Gr. 383.

(d) Commercial Bank v. Watson, 1859, 5 U.C.L.J. 163.

(e) Martin v. Hall, 1878, 25 Gr. 471.

If the person to be served is a lunatic service upon him is nevertheless valid; it is unnecessary to provide that the notice shall be valid in such case (f).

If a trustee has not sufficient funds in his hands to enable him to redeem he will not properly represent his cestui que trust. In that case the cestui que trust should be served with notice for he is of course interested in the equity of redemption and may be in a position to redeem (g).

Notice need be given only to the mortgagor or those claiming under him. If there is a mortgage paramount to the mortgage under which the power of sale is being exercised it is not necessary to notify the paramount mortgagee, but the sale will be subject to his claim. Where a mortgagor took lands by a conveyance which was void as against creditors, and then conveyed to the mortgagee without notice, and the conveyance to the mortgagor was subsequently set aside as against creditors, it was held that the mortgagee need not give notice to the creditors of the mortgagor, the mortgage being paramount to their title, even although the creditors might have a right to redeem and to require an account of the proceeds of the sale (h).

The mortgagor or his assigns may waive the right to notice. Such waiver may be either express or implied from conduct; but mere delay or inaction is not waiver (i). A mortgagor cannot waive notice as against an assignee from him of the equity of redemption (j).

(f) Tracy v. Lawrence, 1854, 2 Dr. 403. A notice of dissolution of partnership properly given under the articles is good, though the partner served be insane; Robertson v. Lockie, 1846, 15 Sim. 285.

(g) See Goldsmid v. Stonehewer, 1852, 9 Hare App. xxxviii; Mills v. Jennings, 1880, 13 Ch.D. 639, S.C. 6 App. Cas. 693.

(h) Major v. Ward, 1847, 5 Hare 598.

(i) Selwyn v. Garfit, 1888, 38 Ch.D. 273; In re Thompson and Holt, 1890, 44 Ch.D. 492.

(j) Forster v. Hoggart, 1850, 15 Q.B. 155; Selwyn v. Garfit, 1888, 38 Ch.D. 273.

Where the power of sale provided that the notice should be given to the mortgagor, his heirs, executors, administrators or assigns, or left at his or their usual or last known place of abode, and the notice was fixed to the door of the last known place of abode, this was held to be valid service as against the creditors of the mortgagor (k).

According to the extended power of sale which is the equivalent of the short form of power of sale under the Short Forms of Mortgages Act (l) notice of exercising the power of sale must be given to the mortgagor, his heirs, executors, administrators or assigns either personally or at his or their usual or last place of residence within the province. It has been held that the statute permits substitutional service at the usual place of residence of the mortgagor although he may be within the province (m). Three modes of service are permitted by the statute:- (1) personal service on the mortgagor; (2) service by leaving the notice at the mortgagor's usual place of residence within the province; and (3) service by leaving the notice at the mortgagor's last place of residence within the province (n).

A difficulty may arise where personal service cannot be effected and the mortgagor has no usual place of residence within the province, and where further the mortgagor's last place of residence within the province is not known. To meet this difficulty, a special clause may be inserted providing for alternative modes of service (o).

It is provided by the Registry Act, R.S.O. 1914, c. 124, s. 58, as follows:

(k) Major v. Ward, 1847, 5 Hare 598.

(l) For the text of the short form and the corresponding extended form, see Sec. 334, supra.

(m) O'Donohoe v. Whitty, 1882, 2 O.R. 424, referring to Major v. Ward, 1847, 5 Hare 598; affirmed in Court of Appeal on another ground: 20 C.L.J. 146.

(n) Per Boyd, C, O'Donohoe v. Whitty, 1882, 2 O.R. 424, at p. 430.

(o) See special form of power suggested in Sec. 333, supra.

58.- (1) A notice of sale of land under the provisions of The Mortgages Act, and a notice of exercising the power of sale contained in any mortgage, and the affidavit or declaration of service thereof may be registered, and the same shall be registered in the same manner as an instrument affecting land, but it shall not be necessary to record the notice or the affidavit or declaration of service attached thereto in the registry book.

(2) The affidavit or declaration shall be made by the person who served the notice, and shall prove the time, place and manner of such service, and that the copy delivered to the registrar is a true copy of the notice served.

(3) A copy of the registered notice and affidavit or declaration certified under the hand and seal of office of the registrar shall be prima facie evidence of the service of the notice as stated in the affidavit or declaration (p).

(4) Where the person who served the notice is dead or out of Ontario, or where it is proved to the satisfaction of a Judge of a County or District Court, that the place of abode of such person is unknown, or that he is incapable of making an affidavit or declaration of service, or where service of such notice has been or is duly admitted any person who is or who claims to be interested in the registration of the notice may make proof before the judge of the service of the notice, and upon a certificate of such judge endorsed on or attached to the notice and signed by him to the effect that from the proof adduced by the person producing the proof, naming him, he is satisfied of the due service of the notice, the registrar shall register the notice and certificate.

(5) Where the notice cannot be produced to be registered any person who is or who claims to be interested in the registration of the notice may make proof before the judge of the service thereof, and of the inability to produce the same, and upon depositing a certificate of such judge to the effect that from the proof adduced by the person producing the proof, naming him, he is satisfied of the due service of the notice upon the person served, naming him, and that the same cannot be produced the registrar shall register the certificate, and a copy of such certificate under the hand and seal of the registrar shall be prima facie evidence of the facts therein stated (q).

(6) Where a notice of sale of a certificate of a judge under subsections 4 or 5 has been registered, the same may be registered in any other registry office by depositing a copy thereof, certified in the manner provided by section 44.

(p) Cf. Re Winberg and Kettle, 1917, 12 O.W.N. 327.

(q) See Girardot v. Curry, 1917, 38 O.L.R. 350, 33 D.L.R. 272.