It is further provided in Ontario by the Execution Act, R.S.O. 1914, c. 80, s. 33, as follows:

33. A mortgagee of land, or the executors, administrators or assigns of a mortgagee, being or not being the execution creditor, may be the purchaser at the sale, and shall acquire the same estate, interest and rights thereby as any other purchaser, but in that event he or they shall give to the mortgagor a release of the mortgage debt; and if another person becomes the purchaser, and if the mortgagee, his executors, administrators or assigns shall enforce payment of the mortgage debt by the mortgagor the purchaser shall repay the debt and interest to the mortgagor, and in default of payment thereof within one month after demand the mortgagor may recover the debt and interest from the purchaser, and shall have a charge therefor upon the mortgaged land.

(a) Pegge v. Metcalfe, 1856, 5 Gr. 628.

(b) Fisken v. McMullen, 1862, 12 U.C.C.P. 85.

(c) Doe d. Richardson v. Dickson, 1832, 2 U.C.O.S. 292.

(d) Parr v. Montgomery, 1880, 27 Gr. 521.

Where the judgment creditor, being also mortgagee, purchased at a sheriff's sale the equity of redemption in the lands comprised in his mortgage, bidding therefor just enough to cover the amount due on the execution but paying no money except the costs of the sheriff, it was held that the alleged sale was not a real sale and that the sheriff's deed made in pursuance thereof was void (e).

The position of a mortgagee purchasing the equity of redemption at a sheriff's sale is different from that of a stranger who purchases. A mortgagee purchasing, even if he is the holder of the judgment under which the sale takes place, must give to the mortgagor a release of the mortgage debt (f). If another person purchases, the mortgagee is of course still entitled to recover the mortgage debt from the mortgagor, and in that event the purchaser is in the same position as if he had brought the equity of redemption from the mortgagor and is subject to the ordinary obligation to indemnify his vendor arising from the fact of purchase subject to a charge (g).

A mortgagee may purchase the equity of redemption under an execution without thereby merging the mortgage debt as against any subsequent mortgagee or person having a charge on the same property (h).

(e) Samis v. Ireland, 1879, 4 O.A.R. 118.

(f) Samis v. Ireland, supra. See the Execution Act, s. 33, supra.

(g) The latter portion of s. 33 expresses this obligation in statutory form. See chapter 14, Transferee of the Equity of Redemption, Sec. 134.

(h) R.S.O. 1914, c. 112, s. 9, quoted in chapter 21, Merger, Sec. 204.