Equity carried to its logical conclusion the principle that the mortgage transaction was in essence merely the giving of security, by incorporating in the contract certain inevitable terms which were not in accordance with the language of the contract and which the parties to the contract could neither dispense with nor modify (f). One of these terms was that after the mortgagor's estate had become forfeited at law, equity would relieve against the forfeiture and allow him to redeem (g), or, in other words, would give him an equitable right to redeem after his contractual right was gone. In substance it is obvious that this equitable rule is more just than the legal rule according to which, no matter how valuable the estate was in comparison with the debt secured, the estate was forfeited on default in payment exactly on the day (h). In point of form the equitable rule is objectionable because it contradicts the language of the mortgage whereas the legal rule is in agreement with the language. "That is the worst of our mortgage deed-owing to the action of equity, it is one long suppressio veri and suggestio falsi." (i) It is

(c) Holdsworth, History of English Law, vol. 2, p. 491; cf. Strahan, Law of Mortgages, 2nd ed., 19, 20.

(d) 1 Cas. in Ch. 283, 2 W. & T.L.C. Eq. 1; s.c. sub nom. Thorn-borough v. Baker, 3 Swanst. 628, 18 R.C. 231, 2 Freeman 143.

(e) 21 Halsbury, Laws of England, p. 182, note (q). As to the heir's title to the legal estate and the present law in Ontario with regard to the devolution of the mortgagee's interest, see chapter 13, Persons Entitled on Death of the Mortgagee.

(f) Ashburner, Principles of Equity, 258 ff. In a modern mortgage it is customary to insert special contractual provisions, such as a power of sale, a right to distrain, etc., and, such provisions are binding in so far as they are consistent with the "inevitable terms" incorporated by equity in the mortgage transaction.

(g) Cf. Kreglinger v. New Patagonia, etc., Co., [1914] A.C. 25, at p. 35.

(h) H. D. Hazeltine in Die Geschichte des englischen Pfan-drechts (Breslau, 1907), p. 249, refers to some passages in the old dramatists as showing that the harshness of the common law rule as to forfeiture on default was not in accord with the public sentiment as to what was just and that the mortgagee who took advantage of the forfeiture might have qualms of conscience. From Fletcher's The Night Walker or Little Thief: Alathe.-Thou hast undone a faithful gentleman,

By taking forfeit of his land. Algripe.-I do confess. I will henceforth practise repentance.

I will restore all mortgages, forswear abominable usury. From the Three Ladies of London (1584): Simplicity.-O that vile Usury! he lent my father a little money; and for breaking one day, He took the fee-simple of his house and will quite away; And yet he borrowed not half a quarter as much as it cost; But I think, if it had been a shilling, it had been loste; So he killed my father with sorrow,and undoed me quite, (i) Maitland, Equity and the Forms of Action, p. 269.

"an instrument which perhaps lends itself to imposition-for no one, I am sure, by the light of nature ever understood an English mortgage of real estate." (j)

The following remarks of Lord Bramwell are quoted with mental reservations:

"Of course, one knows in a general, if not in a critical way, what is an equity of redemption. It is a right not given by the terms of the agreement between the parties to it, but contrary to them, to have back securities given by a borrower to a lender, I suppose one may say by a debtor to a creditor, on payment of principal and interest, at a day after that appointed for payment, when by the terms of the agreement between the parties the securities were to be the absolute property of the creditor. This is now a legal right in the debtor. Whether it would not have been better to have held people to their bargains, and taught them by experience not to make unwise ones, rather than relieve them when they have done so, may be doubtful. We should have been spared the double condition of things, legal rights and equitable rights, and a system of documents which do not mean what they say. But the piety or love of fees of those who administered equity has thought otherwise. And probably to undo this would be more costly and troublesome than to continue it." (k)

As always, the Court of Chancery recognized the legal title. In equity as well as at law the mortgagee became the absolute legal owner on the mortgagor's default, in payment, but the Court of Chancery by a decree in personam would compel the mortgagee upon equitable terms to reconvey the land to the mortgagor and, if the mortgagee had already taken possession, would compel him to account for rents and profits received (I).

It was only through intermediate stages that the Court of Chancery reached the final result, namely, that in every case forfeiture would be relieved against in equity unless there existed some equitable ground for refusing relief (m). Littleton, in the fifteenth century, has nothing to say about an equity of redemption, although in at least one case as early as 1456 Chancery gave relief under a feoffment by way of mortgage and a bond to secure payment where the mortgagee fraudulently sought to enforce the bond (n). Coke likewise, in his Commentary upon Littleton, has nothing to say about an equity of redemption, but in his day, in the early part of the seventeenth century, it had become the practice in Chancery to allow a mortgagor to redeem after default in special circumstances, for instance, if the period of default was short and the default was occasioned by accident or fraud (o). So at a comparatively early date Chancery allowed redemption after default in the case of a person who had made a mortgage as surety merely, because in that case until after the principal debtor had made default the mortgagor would not know whether he would be called upon to pay at all (p).

(j) Samuel v. Jarrah Timber and Wood Paving Corporation, [1904] A.C. 323, Lord Macnaghten at p. 326.

(k) Salt v. Marquess of Northampton, [1892] A.C. 1, at pp. 18-19.

(l) As to the latter case, see chapter 28, Mortgagee in Possession.

In the reign of Charles I the right to redeem equity was fully recognised, even in the absence of special circumstances (q).

Conversely Chancery admitted the right of a mortgagee, after the mortgagor had made default at law, to come into a court of equity and insist that the mortgagor should either exercise his equitable right to redeem within a reasonable time or be forever precluded from exercising it (r).

(m) See Sec. 28, infra.

(n) Select Cases in Chancery (Selden Society, vol. 10, 1896), case 141,

(o) In Courtman v. Conyers, 1600, Acta Cancellariae, 764, the mortgagee was alleged to have purposely absented himself on the day fixed for redemption, in order to avoid receiving payment. In other words, it was a case of fraud. Jenks, Short History of English Law, 219.

(p) Hazeltine, op. cit., 252, 253; Spence, Equitable Jurisdiction, vol. 1, 602, 603; Williams, Real Property, 21st ed., 546, 547.

(q) Emmanuel College v. Evans, 1625-6, 1 Rep. in Ch. 18; Well-den v. Rallison, 1656, 1 Rep. in Ch. 171.

"A bill of foreclosure (it is an action now) never gave and never was intended to give the mortgagee any active remedy. A bill of foreclosure in substance was this: 'You have a right to redeem and you may exercise that right at any time within twenty years (s), according to the usual practice of the court, but I do not want to be kept in a state of uncertainty as to whether I am or am not to be redeemed, and therefore if you want to redeem me, redeem me now.' And the mortgagee has a right to say: 'Redeem me upon those terms upon which you would be entitled to redeem if you filed your redemption suit.' That is all. If you do not redeem your equity of redemption is gone; the only result, therefore, of a bill for foreclosure is to deprive a man of his opportunity of filing a bill of redemption at some future time." (t)