The mere existence of an antecedent debt is not valuable consideration for a security given by the debtor (a). "It to the vesting of the lands in the personal representatives for three years after the owner's death, see chapter 13, Sec. 123.

(y) Subsequent sections of the statute contain some limitations on the power of the court, as well as provisions with regard to the procedure on the application for an order and with regard to the manner of carrying out the transaction.

(z) As to the apportionment of the burden of expenditure as between the beneficiaries, see Re Elliott, 1917, 41 O.L.R. 276, 40 D.L. R. 649, and cases cited.

(a) It is beyond the scope of this book to discuss the general doctrine of consideration, which is fully dealt with in any standard work on contracts, but inasmuch as a mortgage is frequently taken with respect to an existing indebtedness it seems advisable to refer appears to me to be reasonably clear that the mere existence of a debt from A to B is not sufficient valuable consideration for the giving of a security from A to B to secure the debt. If such a security is given, it may of course be given upon some express agreement to give time for the payment of the debt, or to give consideration for the security in some other way, or, if there be no express agreement, the law may very readily imply an agreement to give time. It may not be a definite time, but to forbear for some indefinite time in consideration of the security being given. And further than that, if there is no express agreement, and no agreement can be implied at the time and under the circumstances at and under which the indenture giving the further security is executed, yet if that security be communicated to a person who could otherwise sue on the debt, and on the strength of that security he does in fact forbear to sue on the debt, he does give that time with the object of securing which the security is presumably given, and then I think it appears on the cases that there is sufficient consideration, though in a sense it is an ex post facto consideration, for the security which is given. On the other hand, it appears to me that where there is no communication of the security, where there is no express agreeemnt, and there are no circumstances from which the Courts can imply any agreement, then there is no possibility of its being said with any justice that any consideration has been given at all." (b).

Even though the right of action on the alleged indebtedness is not admitted, forbearance to sue in consideration of security being given may be sufficient. "If a man bona fide to this particular aspect of the doctrine. In the case of a mortgage taken for a present or future advance there will usually be no question as to the validity of the consideration.

(b) Wigan v. English and Scottish Law Life Assurance Association, [1909] 1 Ch. 291, Parker J. at pp. 297-298, and cases cited at pp. 298 ff; cf. Johnston v. Reid, 1881, 29 Gr. 293.

believes he has a fair chance of success, he has a reasonable ground for suing, and his forbearance to sue will constitute a good consideration" (c).

(c) Callisher v. Bischoffsheim, 1870, L.R. 5 Q.B. 449, Cockburn C.J., at p. 452; Miles v. New Zealand Alford Estate Co., 1886, 32 Ch.D. 266; Drewry v. Percival, 1909, 19 O.L.R. 463.