Formerly a certificate of discharge executed by the mortgagee, his assignee, or by such other person as might be entitled by law to receive the money and to discharge the mortgage, when registered operated as a reconveyance (e). In view of the statutory provision authorizing the survivor or survivors of two or more mortgagees or the personal representative of the survivor, to give a receipt (f), it was held that such surviving mortgagee or mortgagees or personal representative might execute a discharge which on registration would operate as a reconveyance (g). Under the present wording of s. 67 of the Registry Act (h), however, a discharge must be executed by the mortgagee, his executors, administrators or assigns, in order that it may, when registered, operate as a reconveyance, and it appears therefore that in the event of the death of one or some of two or more mortgagees, a discharge must be executed by the personal representatives of the deceased mortgagee or mortgagees as well as by the surviving mortgagee or mortgagees in order to operate under the statute.

(d) Waterous Engine Works Co. v. Livingstone, 1904, 7 O.L.R. 740.

(e) See Sec. 184, supra.

(f) R.S.O. 1914, c. 112, s. 11. See chapter 13, Persons entitled on Death of the Mortgagee, Sec. 124.

It was formerly provided by the Act respecting Mortgages of Real Estate, R.S.O. 1897, c. 136, s. 12, as follows:

12. Every certificate of payment or discharge of a mortgage, or of the conditions therein, or of the lands or of any part of the same, or of any part of the money, by the mortgagee, or his assignee, his heirs, executors, administrators, or assigns, or any of them, at whatsoever time given, and whether before or after the time limited by the mortgage for payment or performance, shall, if in conformity with the Registry Act, be valid, to all intents and purposes whatsoever (i).

Under this section it was held that a discharge executed by two of three executors was valid to release a mortgage made to their testator (j). The decision probably rests on the ground that one of several executors can receive and discharge debts due to their testator.

Where a mortgagor who was one of the mortgagee's executors executed a discharge of the mortgage made by himself ,R.S.O. 1914, c. 112, and is represented in the present revised statutes only by 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" in s. 67 of the Registry Act (supra, Sec. 184).

(g) Dilke v. Douglas, 1880, 5 O.A.R. 63, at pp. 70-72.

(h) See Sec. 184, supra.

(i) This section has been omitted from the Mortgagee Act,

(j) Ex parte Johnson, 1875, 6 O.P.R. 225.

its validity was questioned (k), and where one executor gave a mortgage to his co-executor to secure a debt due by him to the estate and after the death of his co-executor executed a discharge of his own mortgage it was held to be ineffectual (I).

Formerly on the death of the mortgagee his executor or administrator became entitled to the mortgage money as part of the personal estate, but if the mortgagee died intestate the legal estate descended to the heir, who held it as trustee for the administrator. The inconvenience arising from the separation of the legal estate and the right to the mortgage debt has, however, been remedied by statute (m).

An executor derives his title not from the letters probate-which are merely evidence-but from the will itself, whereas an administrator derives his title purely from the grant of administration. The executor of a mortgagee, who has proved the will in Scotland and registered the will and the foreign probate in the county in Ontario in which the mortgaged land is situate, may execute a valid discharge of the mortgage without proving the will in Ontario or having the probate resealed by a surrogate court in Ontario (n). On the other hand, a foreign administrator cannot validly release or discharge a mortgage of land in Ontario, and payment to him and a release by the beneficiaries are not sufficient to entitle the owner to a certificate of title free from encumbrance under the Quieting Titles Act (o).

(k) McPhadden v. Bacon, 1867, 13 Gr. 591.

(l) Beaty v. Shaw, 1886, 13 O.R. 21, 14 O.A.R. 600.

(m) See chapter 13, Persons entitled on Death of the Mortgagee, Sec. Sec. 121, 122. As to the present mode of devolution of land held by way of mortgage, see Sec. 123.

(n) Re Green and Flatt, 1913, 29 O.L.R. 103, 13 D.L.R. 547.

(o) In re Thorpe, 1868, 15 Gr. 76.