The mortgagor continues to be personally liable under his covenant, although he has conveyed away the equity of redemption in the land. In such a case the mortgagee would be entitled to judgment on the covenant only on the term that upon receiving payment of the amount due from the mortgagor he shall reconvey the property to him subject to the existing equity of redemption (6).

The burden of the covenant to pay the mortgage money does not run with the land and the purchaser of the equity of redemption from the mortgagor will not be liable to the mortgagee; there is no privity of contract between them. So, although the purchaser of the equity of redemption covenants with his transferor to pay the mortgage or by reason of buying the property cum onere is under an obligation to indemnify the transferor against the mortgage, the mortgagee, not being in privity with the purchaser, is not entitled to enforce such covenant or obligation unless it has been assigned to him (c).

(a) Underbill, Law of Trusts, 7th ed., pp. 38, 49; Fletcher v. Fletcher, 1844, 4 Hare 67; Lloyds v. Harper, 1880, 16 Ch.D. 290; Gandy v. Gandy, 1885, 30 Ch.D. 57; Faulkner v. Faulkner, 1893, 23 O.R. 252. See also Mitchell v. City of London Assurance Co., 1888, 15 O.A.R. 262, cited in chapter 34, Fire Insurance, Sec. 373.

(b) Kinnaird v. Trollope, 1888, 39 Ch.D. 636. As to the mortgagor's right to an assignment of the mortgage on payment, see chapter 20. As to the effect upon the mortgagee's right to sue of his inability to reconvey the mortgaged property, see Sec. 227, infra.

If the mortgagor is dead his personal representative may be sued and judgment may be recovered out of the assets of the deceased (d).

If the mortgagor is a married woman and the mortgage deed contains a covenant by her to pay, she is not thereby made personally liable, but the covenant operates as a contract binding upon her separate estate as provided by the Married Women's Property Act (e). A judgment against a married woman on the covenant for payment must therefore be qualified (f) in conformity with form 110 (g), which is as follows:

This Court doth order and adjudge that the plaintiff do recover against the defendant the sum of $ to be levied out of the separate property of the said defendant which she is now or may hereafter be possessed of or entitled to, and any property which she may hereafter while discovert be possessed of or entitled to and not otherwise: but this judgment shall not render available to satisfy the same any separate property which the defendant was or may be restrained from anticipating unless by reason of section 21 of The Married Women's Property Act, such property shall be available to satisfy the judgment notwithstanding such restriction.

Where the married woman was merely a trustee for her husband of property purchased by him and conveyed to her and she joined with her husband in creating a mortgage upon it, she was held not liable on the covenant, although the mortgagee had no knowledge of her position (h).

(c) See chapter 14, Transferee of the Equity of Redemption, Sec. Sec. 134, 135 and 136. The statement in the text is subject to qualification in Alberta under special statutory provisions, referred to in Sec. 134.

(d) As to the pleadings and the form of judgment in an action against an executor or administrator for a debt incurred by the deceased, see Holmested, Judicature Act, 4th ed., 1129. As to a covenant by a personal representative or trustee, see Sec. 222, supra.

(e) See the provisions of the statute quoted in chapter 2, Mortgage at Common Law, Sec. 16.

(f) Scott v. Morley, 1887, 20 Q.B.D. 120; McMichael v. Wilkie, 1891, 18 O.A.R. 464, at p. 472; Doull v. Doelle, 1905, 10 O.L.R. 411; Re Stewart v. Edwards, 1905, 11 O.L.R. 378.

(g) Appendix to the Consolidated Rules of Practice, Ontario.

The court may in certain circumstances direct a mortgage to be made of an infant's interest in land (i), but in the case of a mortgage of trust property in which an infant joined along with other cestuis que trust, it was held that it was contrary to proper practice to insert a covenant for payment on the part of the infant (j).