In the absence of evidence of actual intention, either express or gathered from the circumstances of the transaction

(see Sec. 205, infra), a decision which was much discussed in the Court of Appeal.

(r) Thorne v. Cann, [1895] A.C. 11, at p. 19, 18 R.C. 552, at pp. 559-5o0. There were in this case also other circumstances showing the intention to keep the mortgage alive. Cf. Reeves v. Konschur, 1909, 2 S.L.R. 125.

(s) Jones v. Morgan, 1783, 1 Bro. C. C. 206; Lord Compton v. Oxenden, 1793, 4 Bro. C. C. 396; Tyler v. Lake, 1832, 4 Sim. 53.

(t) Hood v. Phillips, infra; Astley v. Milles, 1827, 1 Sim. 298, at p. 341; Adams v.'Angell, 1877, 5 Ch.D. 634; Macdonald v. Bulli-vant, 1884, 10 O.A.R. 582.

(u) Hood v. Phillips, 1841, 3 Beav. 513, at p. 518, 18 R.C. 535, at pp. 538, 539.

(v) 21 Halsbury, Laws of England, 321; Watts v. Symes, 1851. 1 DeG. M. & G. 240; Adams v. Angell, supra.

(w), the presumption of merger ordinarily arising from the union of a charge and the estate subject to the charge may be rebutted by the consideration that it is more for the benefit of the owner of the charge and the estate that merger should not take place, as, for instance, if the effect of merger would be to confer priority upon subsequent encumbrancers (x).

It is provided in Ontario by the Mortgages Act, R.S.O.

1914, c. 112, s. 9, as follows:

9.- (1) A mortgagee of freehold or leasehold property, may take and reecive from the mortgagor a release of the equity of redemption in such property, or may purchase the same under any judgment or decree or execution without thereby merging the mortgage debt as against any subsequent mortgagee or person having a charge on the same property.

(2) Where a prior mortgagee so acquires the equity of redemption of the mortgagor no subsequent mortgagee shall be entitled to foreclose or sell such property without redeeming or selling, subject to the rights of such prior mortgagee, in the same manner as if such prior mortgagee had not acquired the equity of redemption.

(3) This section shall not affect any priority or claim any mortgagee may have under the registry laws (y).

When the original of this statute was passed, some legislative enactment was deemed necessary in view of the then general understanding of the effect of Toulmin v. Steere, 1817, 3 Mer. 210; but since the passing of the statute the course of judicial decision in England has reduced the danger which that case was supposed to cause to conveyancers (z). The statute is to be strictly construed and does not prevent merger where merger is necessary in order to give effect to the intention of the parties (a).

(w) See Sec. Sec. 202, 203, supra.

(x) Forbes v. Moffatt, 1811, 18 Ves. 384, 17 R.C. 380; Davis v. Barrett, 1851, 14 Beav. 542; Elliott v. Jayne, 1865, 11 Gr. 412; Weaver v. Vandusen, 1880, 27 Gr. 477; Maclennan v. Gray, 1888, 16 O.R. 321, S. C. 16 O.A.R. 224, 18 Can. S.C.R. 553.

(y) See chapter 8, The Registry Act.

(z) See Sec. 205, infra.

(a) Armstrong v. Lye, 1900, 27 O.A.R. 287, and cases cited at pp. 292, 294.

Where a mortgagee purchases the equity of redemption at a sheriff's sale this will have the effect of merger as to the mortgagor although not as to a mesne encumbrancer (b).

In British Columbia it has been held that a conveyance of the equity of redemption by a mortgagor to a mortgagee of lands does not constitute a discharge of the mortgage by merger, unless it is made to appear that such a result was intended by the parties; and when a mortgagee applies to register a conveyance of the equity of redemption the registrar should not mark the mortgage merged unless at the request of the mortgagee (c).

The purchaser of an equity of redemption took an assignment of a charge upon the property and paid off the encumbrancer. It was held that the charge was not extinguished for there was no evidence in the deed or in the circumstances of an intention to extinguish the charge, and it was for the purchaser's benefit that it should be kept alive (d).

If a tenant for life pays off a charge on the inheritance, he is prima facie entitled to that charge for his own benefit, but he may, if he thinks proper, exonerate the estate. In the absence of evidence to the contrary, the presumption is that he pays the charge for his own benefit and not for the benefit of the persons entitled in remainder, notwithstanding that he makes no declaration and does no act to demonstrate his intention (e). A. B., being tenant for life of the testator's real estate, subject to a charge, and absolutely entitled to the residuary personal estate, paid off the charge and obtained releases. At the time he conceived that as residuary legatee he was liable to pay the amount out of the personal estate, which was sufficient for the purpose, and nothing was done to keep the charge on foot. After the death of the tenant for life, it being determined that the amount of the charge was . a primary charge on the real estate, it was held that it still subsisted as a charge on the settled estate for the benefit of the personal representatives of the tenant for life (f).

(b) Woodruff v. Mills, 1860, 20 U.C.R. 51; R.S.O. 1914, c. 80, 8. 33 (see chapter 16, Execution Creditors of the Mortgagor, Sec. 154).

(c) In re Major, 1897, 5 B.C.R. 244.

(d) Liquidation Estates Purchase Co. v. Willoughby, [1898] A. C. 321. See also the discussion of the subject matter of Sec. 204 in Manks v. Whiteley, [1912] 1 Ch. 735, at pp. 760 ff.; S.C. reversed, on other grounds, sub nom. Whiteley v. Delaney, [1914] A.C. 132.

(e) Adams v. Angell, 1877, 5 Ch.D. 634, at p. 645.