It is provided in Ontario by the Registry Act, R.S.O. 1914, c. 124, s. 67, as follows (f):

67. Every certificate of payment or discharge of a mortgage or of the conditions therein or of the lands or any part thereof, by the mortgagee, his executors, administrators or assigns at any time given, and whether before or after the time limited by the mortgage for payment or performance, if in conformity with this Act, shall, when registered, be a discharge of the mortgage or of the lands in such certificate described, as the case may be, and shall be as valid and effectual in law as a release of the mortgage or of such lands and as a conveyance to the mortgagor, his heirs or assigns of the original estate of the mortgagor therein.

S. 67 was first enacted in its present form in 1911 by the statute 1 G. 5, c. 17, s. 31. Prior to that time it and the predecessor of the present s. 62 (g) formed one section in the following terms (h):

(d) R.S.O. 1914, c. 150, s. 3, quoted in chapter 3, Mortgage at Common Law, Sec. 16.

(e) R.S.O. 1914, c. 124, s. 68, quoted in chapter 12, Execution Creditors of the Mortgagee, Sec. 113.

(f) In 1834 by the statute 4 W. 4, c. 16, provision was made in Upper Canada for the registration of a discharge of mortgage. By that statute it was provided that the discharge when registered should have the effect of defeating any title remaining vested in the mortgagee but not any other title. See chapter 4, Law and Equity in Upper Canada, Sec. 33. In 1865, by the statute 29 V. c. 24, it was declared that the discharge when registered should operate as a reconveyance to "the mortgagor, his heirs, executors, administrators, or assigns," and in 1867, by the statute 31 V. c. 20, these words were added, "or any person lawfully claiming by, through or under him or them." Noble v. Noble, 1912, 27 O.L.R. 342, at p. 355. As to the history of the legislation with regard to discharges of mortgage, see also Dilke v. Douglas, 1880, 5 O.A.R. 63, at p. 70.

62. In the case of a registered mortgage, the registrar on receiving a certificate, Form 10, executed by the mortgagee, or if the mortgage has been assigned, then by the assignee, 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 provided for the proof of other instruments, shall, if the assignment or other document of title of the assignee or other person executing the certificate has been registered, 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, and the certificate when registered shall be a discharge of the mortgage, and shall be as valid and effectual in law as a release of the mortgage, and as a conveyance to the mortgagor, his heirs, executors, administrators, or assigns, or any person lawfully claiming by, through or under him or them, of the original estate of the mortgagor.

It will be observed that under the former s. 62 a discharge might be executed by the mortgagee, or if the mortgage had been assigned, then by the assignee, or by such other person as might be entitled by law to receive the money and to discharge the mortgage, whereas under the present s. 67 a discharge must be executed by the mortgagee, his executors, administrators or assigns (i). Again, under the former s. 62 a discharge when registered operated as a conveyance to the mortgagor, his heirs, executors, administrators, or assigns, or any person lawfully claiming by, through or under him or them, of the original estate of the mortgagor, whereas under the present s. 67 it operates as a conveyance to the mortgagor, his heirs or assigns of the original estate of the mortgagor therein (j).

(g) See Sec. 183, supra.

(h) 10 E. 7, c. 60, s. 62, re-enacting R.S.O. 1897, c. 136, s. 76, as amended by 7 E. 7, c. 29, s. 9.

(i) In 1918 the present s. 62 was amended by the addition after the word "assigns" of the words "or by such other person as may be entitled by law to receive the money and to discharge the mortgage," but no similar change was made in s. 67 which alone declares what is to be the effect of a discharge when registered. As to the result of the omission, see Sec. 185, infra.

Where a discharge was executed under a power of attorney which authorized the attorney to sell the principal's lands, execute deeds and give receipts for the consideration money, and upon payment of all or any debts, to give proper and lawful acquittances and discharges for the same, it was held that the attorney had sufficient authority to execute the statutory form of discharge (k).

It would appear that a certificate of discharge is inoperative to revest the lands unless the mortgage is registered (I).

The object of the enactment as stated by Lord Halsbury in construing a similar statute in England "was to get rid of conveyancing formalities and to make the receipt given under the statute to operate as though it were a conveyance" (m).

A certificate of discharge of mortgage operates as a reconveyance, not upon its execution and delivery, but only upon registration (n). So where a certificate of discharge was lost before registration it was held that the disclaimer of the mortgagees, who were trustees, and the consent of their solicitors were not sufficient to enable the court to declare the petitioner entitled to the legal estate in fee simple (o). Before registration the discharge is a mere receipt or acknowledgment of the payment of money (p); and if not under seal is not an estoppel as to the fact of payment (q).

(j) The present s. 67, in addition, contains the words "at any time given, and whether before or after the time limited by the mortgage for payment or performance, if in conformity with this Act." These words are taken from s. 12 of the Act respecting Mortgages of Real Estate, R.S.O. 1897, c. 136, (see Sec. 185), which has been omitted from the present Mortgages Act.