It is provided in Ontario by the Registry Act R.S.O. 1914, c. 124, s. 62, as follows:

62. In the case of a registered mortgage the registrar on receiving a certificate, Form 10, executed by the mortgagee, his executors, administrators or assigns, [or by such other person as may be entitled by law to receive the money and to discharge the mortgage], and duly proven in the manner required for the proof of other instruments, shall register the same, and record it and every affidavit attached to or endorsed on it, at full length in the proper order, in the registry book, and number it in like manner as other instruments are required to be registered, recorded and numbered.

Except as to the words enclosed within square brackets (s) this section in its present form was first enacted in 1911 by the statute 1 G. 5, c. 17, s. 31 (t), but the legislation with regard to discharges of mortgages as a means of reconveyance began in 1834 with the statute 4 W. 4, c. 16 (u).

(r) In re Moore and Hulm's Contract, [1912] 2 Ch. 105. (s) These words were added in 1918 by 8 G. 5, c. 27, s. 8. (t) As to the wording of the section prior to 1911, and as to the person entitled to sign a discharge, see Sec. 184.

The form of discharge referred to in s. 62 is as follows:

To the Registrar of the Registry Division of................. I,................. of................do certify that............. has satisfied all money due on, or to grow duo on (or has satisfied the sum of $........mentioned in), a certain mortgage made by ............of ..................to ..............which mortgage bears date the.......day of............., 19...., and was registered in the Registry Office for the Registry Division of..............on the.........day of............. 19..... at.......... minutes past ..........o'clock......noon, in Book........for .......as No.....

(here mention the date and the date of registration of each assignment thereof, and the names of the parties, or mention that such mortgage has not been assigned, according to the fact), and that I am the person entitled by law to receive the money, and that such mortgage (or such sum of money as aforesaid, or such part of the land as is herein particularly described, that is to say:............) is therefore discharged.

Witness my hand this......day of ............, 19-----

Witness:

It is further provided by the Registry Act, ss. 63-66, as follows:

63. Where a loan corporation which has acquired the assets of another loan corporation by amalgamation of such corporation and the certificate of such amalgamation has been registered desires to discharge any of the mortgages of such corporation it shall be sufficient to set forth in the instrument to be registered the fact of the assent of the Lieutenant-Governor in Council to such amalgamation with the date of the certificate of amalgamation and its registered number in the registry division in which the land affected is situate, or mentioning the Act by which the loan corporations were amalgamated or by which the agreement was ratified, and upon registration of the discharge the registrar shall enter in the abstract index the facts mentioned in the discharge.

64.- (1) Where a mortgage has been paid off by any person advancing money by way of a new loan on mortgage on the same land and the mortgage so paid off or the discharge thereof is held by the mortgagee making the now loan, the discharge of the mortgage so paid off shall be registered within six months from the date thereof, unless the mortgagor shall, in writing, have authorized the retention of the discharge for a longer period.

(u) See chapter 4, Law and Equity in Upper Canada, Sec. 33, and infra, Sec. 184.

(2) The registration shall not affect the right, if any, of the mortgagee who may have paid off such mortgage, his assignee, or any person claiming under him by purchase or otherwise, to be subrogated to the right? of the mortgagee whose mortgage debt has been so paid (v).

65.- (1) Where the person entitled to receive the mortgage money and to discharge a registered mortgage is not the original mortgagee, he shall, at his own expense, cause to be registered before the registration of the certificate of discharge all the instruments or documents through which he claims interest in and title to the mortgage money, and until such instruments or documents are registered the registrar shall not register such certificate of discharge.

(2) The certificate shall mention the date and the date of registration and the registration number of each of the instruments or documents through which the person executing the certificate claims interest in and title to the mortgage money, and the names of the parties thereto.

(3) This section shall apply to powers of attorney where the certificate of discharge or prior instrument or document is executed by attorney, provided that it shall be sufficient in the certificate of discharge to state the date of each instrument, document or power of attorney and the names of the parties thereto, and to endorse on the certificate the date of registration and registration number of each instrument, document, or power of attorney, which endorsement shall be signed by the person who signed the certificate, or his attorney or agent, and the endorsement shall be deemed to be part of the certificate.

(4) Where probate of will or letters of administration with the will annexed is required to be registered under this section, and the will is oven seven folios in length, including the probate or letters, and does not affect land in the registry division, except in so far as the testator was the holder of a mortgage, it shall not be necessary to record the will at full length; but it shall be sufficient to deposit a copy of and record so much of the probate or letters as shows the grant of probate or letters and the appointment of executors and administrators.

(5) The copy shall be accompanied by an affidavit of the executors or administrators, or of one of them, or of his or their solicitor, verifying it and stating that there is nothing in the will limiting the right of the executors or administrators to receive the mortgage money and discharge the mortgage, and that the will does not affect land in the registry division in which the probate or letters is to be registered, except in so far as the testator was the holder of a mortgage comprising land in such registry division.

(v) As to the right of subrogation, see chapter 8, The Registry Act, Sec. 78.

(6) Where the person whose duty it is to register such instruments or documents refuses or neglects to register the same within fifteen days after the payment of the mortgage money to him, the person entitled to redeem the mortgage may, on giving ten days' notice in writing to the person so refusing or neglecting, apply in a summary manner to a Judge of the County or District Court of the county or district wherein the land or any part thereof mentioned in the mortgage is situate for an order directing that the person so refusing or neglecting shall within a time to be fixed by the Judge, register such instruments or documents at his own expense, and the Judge, upon being satisfied by affidavit or oral evidence that the application is a proper one, may make the necessary order.

(7) On being satisfied of the due service of the notice the Judge may proceed in the absence of the person so refusing or neglecting.

(8) The notice shall state that it is given in pursuance of this section.

66.- (1) Where the holder of a mortgage desires to release or discharge part of the land comprised in it, or to release or discharge part of the money secured by the mortgage, he may do so by deed or by certificate to be made, executed, proven, and registered in the same manner and with the like effect to the land or money released or discharged as when the whole land and mortgage are released and discharged (w).

(2) The deed or certificate shall contain as precise a description of the land released or discharged as is required in an instrument of conveyance for registration, and also a precise statement of the particular sum so released or discharged.

The certificate of discharge, not containing words of conveyance and being an instrument that operates as a conveyance only by virtue of the statute, should conform with reasonable strictness thereto (x).

Prior to the 29th day of March, 1873, it was necessary that the residence and occupation of the attesting witness to the certificate of discharge should be stated in the attestation clause (y). But since that date it has been unnecessary to state the residence and occupation of the witness in the attestation clause, and certificates registered before that date are not invalid by reason of their being omitted (z). The affidavit of execution of a certificate of a discharge of mortgage should set forth the name of the witness, his place of residence and addition, occupation or calling, but an instrument may be registered notwithstanding that the Christian name or names of the subscribing witness making the affidavit is or are set forth therein by initials or abbreviation and not in full (a).

(w) See In re Ridout, 1853, 2 U.C.C.P. 477.

(x) It is, however, provided by the Interpretation Act, R.S.O. 1914, c. 1, s. 28 (d), that "where forms are prescribed, deviations therefrom not affecting the substance or calculated to mislead, shall not vitiate thorn," unless the contrary intention appears.

A mortgagee executed a statutory discharge which was incorrectly dated, and his agent in good faith and in order to make the instrument conform to the intention of the mortgagee altered the date. The alteration was, under the circumstances, immaterial, and the document as altered stated correctly what was intended by the parties. The discharge was held to be valid (o).

In case of the registration of an instrument amounting to an equitable mortgage or charge, which is or purports to be given as a security for the payment of a debt or liability incurred in respect of a purchase or delivery of goods or in respect of an advance or loan of money, but not purporting to convey the land, the instrument may be discharged and the land affected thereby released by the registration of a certificate of discharge (c).

(y) 31 V. c. 20, s. 60, form J.

(z) R.S.O. 1897, c. 136, s. 84.

(a) R.S.O. 1914, c. 124, s. 35.

(b) Sayles v. Brown, 1880, 28 Gr. 10.

(c) R.S.O. 1914, c. 124, ss. 36, 69, and form 12. The form is very similar to form 10, quoted above.

A married woman may execute a discharge of mortgage (d).

A sheriff or other officer who seizes a mortgage under a writ of execution or warrant and receives payment of the mortgage money may execute a discharge of the mortgage (e).