After the making of a mortgage by which the land is conveyed to the mortgagee, the mortgagor is not entitled to possession against the mortgagee unless the right to possession is reserved to the mortgagor (f). It is customary, however, in Ontario to insert in a mortgage a proviso for quiet enjoyment by the mortgagor until default. The short form of proviso generally adopted is that contained in the Short Forms of Mortgages Act (g) as follows:

Provided that until default of payment the mortgagor shall have quiet possession of the said lands.

If the mortgage is expressed to be made in pursuance of the statute a proviso in the foregoing form has the same effect as if it were in the following terms (h) :

(c) Superior Savings and Loan Society v. Lucas, 1879, 44 U.C.R. 106.

(d) Cf. form of covenant for quiet possession after default in Sec. 214, infra.

(e) Doe dem. Roylance v. Lightfoot, 1841, 8 M. & W. 553. (f) See Sec. Sec. 212 and 213, supra.

(g) R.S.O. 1917, c. 117, schedule B, clause 17.

(h) See chapter 35, Short Forms of Mortgages Act, Sec. 381.

And provided also, and it is hereby further expressly declared and agreed by and between the parties to these presents, that until default shall happen to be made of or in the payment of the said sum of money hereby secured or mentioned, or intended so to be, or the interest thereof, or any part of either of the same, or the doing, observing, performing, fulfilling or keeping some one or more of the provisions, agreements or stipulations herein set forth, contrary to the true intent and meaning of these presents, it shall and may be lawful to and for the said mortgagor his heirs, executors, administrators and assigns, peaceably and quietly to have, hold, use, occupy, possess and enjoy the said lands, tenements, hereditaments, and premises hereby conveyed or mentioned, or intended so to be, with their and every of their appurtenances, and receive and take the rents, issues and profits thereof to his and their own use and benefit, without let, suit, hindrance, interruption, or denial of or by the said mortgagee, his heirs, executors, administrators or assigns, or of or by any other person or persons whomsoever lawfully claiming, or who shall, or may lawfully claim by, from, under or in trust for him, her, them or any or either of them.

It is also customary in Ontario to insert in a mortgage the following short form of covenant on the mortgagor's part:

And that on default the mortgagee shall have quiet possession of the said lands (i), free from all encumbrances (j).

If the mortgage is expressed to be made in pursuance of the Short Forms of Mortgages Act, a covenant in the foregoing terms has the same effect as if it were in the following terms (k):

And also, that from and after default shall happen to be made of or in the payment of the said sum of money, in the above proviso (0 mentioned, or the interest thereof, or any part thereof, or of or in the doing, observing, performing, fulfilling, or keeping of some one or more of the provisions, agreements or stipulations in the said above proviso particularly set forth, contrary to the true intent and meaning of these presents, and of the said proviso, then, and in every such case, it shall and may be lawful to and for the said mortgagee, his heirs, executors, administrators and assigns, peaceably and quietly to enter into, have, hold, use, occupy, possess and enjoy the aforesaid lands, tenements, hereditaments, and premises hereby conveyed or mentioned or intended so to be, with their appurtenances, without the let, suit, hindrance, interruption or denial of him the said mortgagor, his heirs, executors, administrators or assigns or any other person or persons whomsoever (m).

(i) Short Forms of Mortgages Act, R.S.O. 1914, c. 117, schedule B, clause 7.

(j) Ibid., clause 8.

(k) See chapter 35, Short Forms of Mortgages Act Sec. 381.

(l) The proviso referred to is that which provides that the mortgage shall be void on payment of the mortgage money. The usual form of this proviso is quoted in chapter 19, Discharge or Reconveyance, Sec. 181.

And that free and clear and freely and clearly acquitted, exonerated and discharged of and from all arrears of taxes and assessments whatsoever due or payable upon or in respect of the said lands, tenements, hereditaments and premises or any part thereof, and of and from all former conveyances, mortgages, rights, annuities, debts, executions and recognizances, and of and from all manner of other charges or encumbrances whatsoever.

If a mortgage contains a proviso for quiet enjoyment by the mortgagor until default, the mortgagee will be liable in damages if he enters before default (n). The proviso operates as a redemise to the mortgagee (0), but on default the mortgagee is entitled to enter without previous notice or demand (P).

If by the operation of an attornment clause the mortgagor expressly becomes tenant to the mortgagee, either at will or from year to year, at a rent, then he will have the ordinary right to possession of any such tenant, except in so far as such right may be qualified by the mortgage itself in giving right to entry without notice on default in payment or non-observance of covenants (q). .

(m) Under this clause the mortgagee may take possession on default and make any lease which will not interfere with the mortgagor's right to redeem. Brethour v. Brooke, 1893, 21 O.A.R. 144, 23 O.R. 658. See chapter 15, Lessee of Mortgaged Land, Sec. 144.

(n) Moore v. Shelley, 1883, 8 App. Cas. 285.

(o) Wilkinson v. Hall, 1837, 3 Bing. N.C. 508. See also the notes to Moss v. Gallimore and Keech v. Hall in 1 Smith, Leading Cases, 12th ed., pp. 597 ff. As to the validity of a tenancy for a term exceeding three years created otherwise than by deed executed by the lessor, see chapter 33, Attornment and Distress, Sec. 362.

(p) Doe dem. Garrod v. Olley, 1840, 12 A. & E. 481; Brethour v. Brooke, supra.