When the right of redemption after default became established, the Court of Chancery, in order to prevent its evasion, was obliged to hold that a mortgagor could not by any agreement entered into at the time of the mortgage and as part of the mortgage transaction contract away his right of redemption or fetter it in any way by confining it to a particular time or to a particular class of persons (u). The principle upon which the court interfered with the contract of the parties was, however, not a rigid one. The equity judges looked not at what was technically the form, but at what was really the substance of transactions, and confined the application of their rules to cases in which they thought that in its substance the transaction was oppressive. Thus, in Howard v. Harris (v) Lord Keeper North in 1683 set aside an agreement that a mortgage should be irredeemable after the death of the mortgagor and failure of the heirs of his body, on the ground that such a restriction of the right to redeem was void in equity, but he intimated that if the money had been borrowed by the mortgagor from his brother, and the former had agreed that if he had no issue the land should become irredeemable, equity would not have interfered with what would really have been a family arrangement. The exception thus made to the rule, in cases where the transaction includes a family arrangement as well as a mortgage, has been recognised in later authorities (w).

(r) How v. Vigures, 1628-9, 1 Rep. in Ch. 32. As to the right to foreclose, see further chapter 24, Action for Foreclosure or Sale, Sec. 231.

(s) The period is now ten years in Ontario, twelve years in England. See chapter 26, Limitation of Actions, Sec. 277.

(t) Cummins v. Fletcher, 1880, 14 Ch.D. 699, at p. 708. The passage quoted occurs in a judgment relating to the mortgagee's right of consolidation. See chapter 9, Consolidation and Tacking, Sec. 81.

(u) Mellor v. Lees, 1742, 2 Atk. 494. "It seems that a borrower was such a favourite with courts of equity that they would let him break his contract, and, perhaps, by disabling him from binding himself, disable him from contracting on the most advantageous terms to himself." Salt v. Marquess of Northampton, [1892] A.C. 1, Lord Bramwell, at p. 19.