After the making of a mortgage the concurrence of both the mortgagor and the mortgagee is necessary for a valid lease unless either party is empowered by statute or by the terms of the mortgage (m).

Under a mortgage made pursuant to the Short Forms of Mortgages Act (n) containing a covenant in the form of schedule B, clause 7, of that act, that on default the mortgagee shall have quiet possession of the lands, a mortgagee may on default, without giving notice, take possession and make any lease that will not interfere with the mortgagor's right to redeem (o). There is nothing in this covenant repugnant to the proviso contained in schedule B, clause 14, of the act, that the mortgagee on default of payment may, after giving notice, enter on and lease or sell the lands. The act contemplated in the proviso is not the mere taking possession in order to keep down the interest, which may be done immediately on default and without notice, but the entering on the lands to lease or sell in such wise that the mortgagor's right to redeem will be postponed or destroyed (p).

(j) Towerson v. Jackson, supra; cf. Brock v. Forster, 1897, 34 N.B.R. 262; Underhay v. Read, 1887, 20 Q.B.D. 209.

(k) Doe v. Bucknell, 1838, 8 C. & P. 566; Corbett v. Plowden, 1884, 25 Ch.D. 678.

(l) Keith v. R. Gancia & Co., [1904] 1 Ch. 774, at p. 783.

(m) Williams, Real Property, 21st ed., pp. 561, 555. In England by the Conveyancing Act, 1881, 44 & 45 V. c. 41, either a mortgagor or a mortgagee in possession may make valid leases binding upon the other subject to certain limitations specified in the statute. Will son v. Queen's Club, [1891] 3 Ch. 522; Brown v. Peto, [1900] 2 Q. B. 653; King v. Bird, [1909] 1 K.B. 837; Public Trustee v. Lawrence, [1912] 1 Ch. 789. By the Conveyancing Act, 1911, a mortgagor or a mortgagee in possession has limited powers of accepting surrenders of leases for the purpose of enabling him to grant other leases authorized by the statute.

(n) See chapter 35, Short Forms of Mortgages Act, Sec. 383. The short form of covenant and the corresponding extended form are set out in chapter 22, Action for Possession, Sec. 214.

The Real Property Act of Manitoba and the Land Titles Acts of Saskatchewan and Alberta contain provisions enabling a mortgagee to make leases after default subject to the conditions mentioned in the statutes (q).

(o) Brethour v. Brooke, 1893, 23 O.R. 658, 21 O.A.R. 144.

(p) Brethour v. Brooke, supra; Doe dem. Garrod v. Olley, 1840, 12 A. & E. 481; Lows v. Telford, 1876, 1 App. Cas. 414.

(q) See chapter 22, Action for Possession, Sec. 217, where these provisions are more fully referred to.