It is provided in Ontario by the Trustee Act, R.S.O. 1914, c. 121, s. 9, as follows (p):

9. Where a mortgagee of land has died without having entered into the possession or into the receipt of the rents and profits thereof, and the money due in respect of the mortgage has been paid to a person entitled to receive the same, or that last mentioned person consents to an order for the reconveyance of the land the Supreme Court may make an order vesting the land in such person or persons, in such manner, and for such estate as the Court may direct, in any of the following cases:-

(a) Where an heir, or personal representative, or devisee,of the mortgagee is out of Ontario or cannot be found; or

(b) Where an heir, or personal representative, or devisee of the mortgagee, on demand made by or on behalf of a person entitled to require a conveyance of the land, has stated in writing that he will not convey the same, or does not convey the same for the space of fourteen days next after a proper deed for conveying the land has been tendered to him by or on behalf of the person so entitled; or

(c) Where it is uncertain which of several devisees of the mortgagee was the survivor; or

(d) Where it is uncertain, as to the survivor of several devisees of the mortgagee, or as to the heir or personal representative of the mortgagee, whether he is living or dead; or

(e) Where there is no heir or personal representative of a mortgagee who has died intestate as to the land, or where the mortgagee has died and it is uncertain who is his heir or personal representative or devisee.

Provision is made by the Lunacy Act, R.S.O. 1914, c. 68, s. 26 (q), for a vesting order where a lunatic is solely or jointly seized or possessed of any land upon trust or by way of mortgage, and for an order releasing and disposing of the land where a lunatic is solely or jointly entitled to a contingent right in any land upon trust or by way of mortgage. It is also provided by the Trustee Act, R.S.O. 1914, c. 121, s. 8 (r), as follows:

8. Where any person entitled to or possessed of land, or entitled to any contingent right in land, by way of security for money, is an infant, the Supreme Court may make an order vesting or releasing or disposing of the land or right in like manner as in the case of an infant trustee.

(p) Following the English statute 56 & 57 V. c. 53, s. 29.

(q) Following the English statute 53 & 54 V. c. 5, ss. 134, 135.

(r) Following the English statute 56 & 57 V. c. 53, s. 28.

It is provided by the Conveyancing and Law of Property Act, R.S.O. 1914, c. 109, s. 21, as follows (s):

21.- (1) Where land subject to an incumbrance, whether immediately payable or not, is sold by any Court or out of Court, the Supreme Court or the Court in which the sale takes place may, on the application of any party to the sale, direct or allow payment into Court, in the case of an annual sum charged on the land, or of a capital sum charged on a determinable interest in the land, of such amount as, when invested in securities approved by the Court, the Court considers will be sufficient by means of the income thereof to keep down or otherwise provide for that charge; and in any other case of capital money charged on the land, of an amount sufficient to meet the incumbrance and any interest due thereon; but in either case there shall also be paid into Court such additional amount as the Court considers will be sufficient to meet the contingency of further costs, expenses, and interest, and any other contingency except depreciation of investments, not exceeding one-tenth of the original amount to be paid in, unless the Court for special reasons thinks fit to require a larger additional amount.

(2) The Court may thereupon, either after or without notice to the incumbrancer, declare the land to be freed from the incumbrance, may make any order for conveyance, or vesting order, proper for giving effect to the sale, and may give directions for the retention and investment of the money in Court.

(3) After notice served on the persons interested in or entitled to the money or fund in Court, the Court may direct payment or transfer thereof to the persons entitled to receive or give a discharge for the same, and generally may give directions respecting the application or distribution of the capital or income thereof.

(4) Payment of money into Court shall effectually exonerate therefrom the person making the payment.

(5) The application shall be made in chambers, and on notice.

(6) On an application by a purchaser notice shall be served in the first instance on the vendor.

(71 On an application by a vendor, notice shall be served in the first instance on the purchaser.

(8) On any application notice shall be served on such persons as the Court thinks fit.

(s) Following the English statute 44 & 45 V. c. 41, s. 5.

(9) The Court may make such order as it deems just respecting the costs, charges or expenses of any of the parties to the application.

Prior to 1915 no provision was made in Ontario for a vesting order or an order releasing the land in the case of an absent mortgagee, although there was a provision in the Trustee Act authorizing the Court to make a vesting order in the case of an absent trustee (t). In English conveyancing practice a deed conveying property in trust for sale and directing payment of a debt out of the proceeds is not uncommon, and such a trust deed is frequently described as a "mortgage." It was held, however, not to be a mortgage within the meaning of the corresponding provision of the English Trustee Act, and therefore a vesting order was made under the trustee clauses (u), but a mortgage in the ordinary form, containing a power of sale providing that the surplus proceeds of sale after payment of the mortgagee's claim shall be held in trust for the mortgagor, is a mortgage and not a trust deed (v), and therefore a vesting order cannot be made in the case of the mere absence of the mortgagee (w).

(t) R.S.O. 1914, c. 121, s. 6, following the English statute 56 & 57 V. c. 53, s. 26.

(u) In re Underwood, 1857, 3 K. & J. 745.

(v) In the Ontario Trustee Act, as in the corresponding English statute, it is provided that "trust" shall not mean the duties incident to an estate conveyed by way of mortgage. During the continuance of a mortgage there is no relation of trustee and cestui que trust between mortgagor and mortgagee. London and County Banking Co. v. Goddard, [1897] 1 Ch. 642, at p. 650.

(w) Re Worthington and Armand, 1915, 33 O.L.R. 191, 21 D.L.R. 402, not following In re Keeler's Mortgage, 1863, 32 L.J. Ch. 101. It was pointed out that in the circumstances of the case an application might be made under s. 21 of the Conveyancing and Law of Property Act quoted above.

In 1915 the Mortgages Act, R.S.O. 1914, c. 112, s. 11 (x), was amended by the addition of the following sub-sections(y);

(2) Where it is impossible for a mortgagor or other person entitled to pay off a mortgage and to receive a certificate of discharge thereof to pay the principal or interest accruing due at any time on such mortgage and to obtain a proper discharge thereof, owing to the whereabouts of the mortgagee, or of one or more of several mortgagees or other person or persons entitled to receive such payment and to give such discharge, being unknown or for some other cause, the court may on the application of the mortgagor, or in the case of a mortgage to more persons than one as mortgagees, on the application of one of the mortgagees, direct payment into court of such principal or interest, and by the same or a subsequent order may direct payment out to any mortgagee of the portion thereof to which he is entitled.

(3) Payment of such money into court shall effectually exonerate therefrom the person making such payment, and when the total amount of the principal and interest due on such mortgage shall have been paid into court by the mortgagor he shall be entitled to an order discharging such mortgage, and the registration of a certificate of such order in the proper registry office shall have the same force and effect as the registration of a certificate of discharge of the mortgage as provided by The Registry Act.

(4) The application shall be made in chambers on originating notice in accordance with the practice of the Supreme Court.

(5) The Judges of the Supreme Court may make rules in the manner provided by The Ontario Judicature Act with respect to rules of court for regulating the practice upon the application under subsections 2 to 4, for prescribing the proofs required to be furnished by the applicant as to the state of accounts, and for providing for the terms and conditions upon which an order may be made under sub-section 2.

(6) The conditions may include the payment into court of an amount greater than the amount shown to be due on the mortgage or may require security to be given by the mortgagor or other person applying, as the judge may deem proper.

(x) This section is quoted in chapter 13, Persons entitled on Death of the Mortgagee, Sec. 124. It validates payment of the mortgage money to, and receipt by, the survivor or survivors of two or more mortgagees or the personal representatives of the survivor.

(y) 5 G. 5, c. 21, s. 1.