A mortgagee may of course transfer his interest in the land without the concurrence of or notice to the mortgagor, and the mortgage debt necessarily passes as incident to the security (t), but in order that the transferee may be entitled to sue upon the covenant there must be an assignment of the mortgage debt (u) and a transfer of a mortgage usually contains such an assignment. The debt like other choses in action was formerly not assignable at law. It was assignable in equity but the assignee was obliged at law to sue in the name of the assignor, and therefore it was usual to insert in the transfer of a mortgage a power of attorney to use the assignor's name (v).

(p) Doe dem. Holderness v. Donelly, 1846, 3 Kerr (N.B.) 238. (q) See chapter 10, The Land Titles Acts, Sec. 93.

(r) R.S.O. 1914, c. 126, s. 54; R.S.M. 1913, c. 171, ss. 106, 109-111; Sask. statutes, 1917 (2nd sess.), c. 18, ss. 122-124; Alta. statutes, 1906, c. 24, ss. 66-88; R.S. B.C., 1911, c. 127, s. 106; R.S.C. 1906, c. 110, ss. 104-107; Smith v. National Trust Co., 1912, 45 Can. S.C.R. 618, 1 D.L.R. 698.

(s) In re Beachey, Heaton v. Beachey, [1904] 1 Ch. 67.

(t) In the sense already indicated. Jones v. Gibbons, supra, Sec. 101. Cf. Neveren v. Wright, 1917, 39 O.L.R. 397, at pp. 405-6, 36 D.L.R. 734, at pp. 740-1.

It is now provided in Ontario by the Conveyancing and Law of Property Act, R.,S.O. 1914, c. 109, s. 49, as follows (w):

49.- (1) Any absolute assignment, made on or after the 31st day of December, 1897, by writing under the hand of the assignor, not purporting to be by way of charge only, of any debt or other legal chose in action of which express notice in writing shall have been given to the debtor, trustee or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be effectual in law, subject to all equities which would have been entitled to priority over the right of the assignee if this section had not been enacted, to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same without the concurrence of the assignor.

An assignment which does not purport to be by way of charge only but which purports to transfer the whole interest of the assignor to the assignee is an absolute assignment within the meaning of the statute even though it appears on the face of the assignment that it is subject to a right of redemption or that it is made only for the purpose of securing a debt smaller in amount than the mortgage debt (x).

(u) Under the land titles system the simple transfer of the mortgage in the form prescribed by statute has, when registered, the effect of vesting in the transferee the right to sue for the debt. See the statutory references in Sec. 101.

(v) Relief would be given in equity to the assignee if the assignor, being indemnified against all costs and charges, refused to allow the assignee to use his name. 1 W. & T. L.C. Eq. 140.

(w) Re-enacting R.S.O. 1897, c. 51 (The Judicature Act), s. 58 (5). Prior to 1897 the assignment of choses in action was governed in Ontario by R.S.O. 1887, c. 122, ss. 6 and 7, but in that year by 60 V. c. 15, s. 5, the provision of the English Judicature Act, 1873, s. 25 (6), was adopted in Ontario, as above.

Where a third party arranged with the mortgagor to take over a mortgage, and made one payment to the mortgagee of the amount of the then arrears, and at the maturity of the mortgage paid the balance owing and took an assignment in which the amount paid at maturity was recited as the debt then owing and assigned, it was held, in accordance with the intention of the parties to the assignment that the assignee was entitled to hold the mortgage as security for both payments made by him (y).