Although a mortgagor cannot at the time of the making of the mortgage and as part of the mortgage transaction, contract himself out of his equity of redemption (p), a mortgage may be made irredeemable for a reasonable period (q), at least if the provision to that effect is mutual (r).

As a general rule a mortgagor is not entitled to redeem before the day fixed in the mortgage contract for payment of the principal (s), unless the mortgagee has taken steps to recover payment by taking possession or otherwise (t), or unless the day fixed for redemption is unreasonably distant (u)

In the case of a Welsh mortgage the mortgagor may redeem at any time (v), but generally in other cases the time for payment of the mortgage money must be ascertained or ascertainable by reference to a fixed day or to the happening of a certain event. If the time be uncertain or of unreasonable duration redemption may be decreed in a reasonable time (w). Redemption was allowed before the day named for payment where by the proviso the mortgagor was entitled to redeem on the day named or on payment before or after it (x).

(o) Gunn v. Harper, 1901, 2 O.L.R. 611.

(p) See chapter 3, Legal Mortgage in Equity, Sec. 23.

(q) Teevan v. Smith, 1882, 20 Ch.D. 724, at p. 729; Biggs v. Hoddinott, [1898] 2 Ch. 307; Bradley v. Carritt, [1903] A.C. 253, at p. 259.

(r) Morgan v. Jeffreys, [1910] 1 Ch. 620; in this case a provision that the mortgagor, without the consent of the mortgagee, should not be entitled to redeem until the end of 28 years was held to be unreasonable and unenforceable.

(s) Brown v. Cole, 1845, 14 Sim. 427, 18 R.C. 116. In this case the mortgagor, having an advantageous offer for the property, tendered to the mortgagee the principal with interest to the day named in the mortgage for payment. A demurrer to a bill for redemption for want of equity was allowed. As to a stipulation in the mortgage that the money shall not be called in for a certain time, see the notes in 18 R.C. at p. 117.

(t) 21 Halsbury, Laws of England, p. 147, citing Bovill v. Endle, [1896] 1 Ch. 648; Ex parte Wickens, [1898] 1 Q.B. 543, at p. 548.

(u) 21 Halsbury, Laws of England, p. 143. See also the statutory provisions, hereinafter referred to, applicable to the case of a mortgage which by its terms is not repayable until more than five years after its date.

(v) See chapter 1, Introductory, Sec. 2.

If in an action of foreclosure upon a mortgage which contains an acceleration clause the mortgagee claims the benefit of the clause and calls in the whole mortgage debt, he is bound by his election and must accept principal, interest and costs, whenever tendered, even though he does not seek an order for immediate payment (y).

Where, pursuant to any condition or proviso contained in a mortgage, there has been made or given a demand or notice requiring payment of all money secured by the mortgage the person making such demand or giving such notice is bound to accept and receive payment of the same if made as required by the terms of such demand or notice (z).

If a mortgage is made payable on demand, or if no time is fixed for payment, as in the case of an equitable mortgage by deposit of title deeds or other informal mortgage, the mortgagor may redeem at any time, as the mortgagee has the correlative right at any time to call in the loan (a).

It is provided by the Interest Act, R.S.C. 1906, c. 120, s.

10, as follows (b):

10. Whenever any principal money or interest secured by mortgage of real estate is not, under the terms of the mortgage, payable till a time more than five years after the date of the mortgage, then, if, at any time after the expiration of such five years, any person liable to pay or entitled to redeem the mortgage tenders or pays, to the person entitled to receive the money, the amount due for principal money and interest to the time of payment, as calculated under the provisions of the four sections last preceding (c), together with three months' further interest in lieu of notice, no further interest shall be chargeable, payable or recoverable at any time thereafter on the principal money or interest due under the mortgage; Provided that nothing contained in this section shall apply to any mortgage upon real estate given by a joint stock company or other corporation, nor to any debenture issued by any such company or corporation, for the payment of which security has been given by way of mortgage on real estate.

(w) Newcomb v. Bonham, 1681, 1 Vern. 7.

(x) Harding v. Tingey, 1865, 10 Jur. N.S. 872.

(y) Cruso v. Bond, 1882, 1 O.R. 384.

(z) R.S.O. 1914, c. 112, s. 30, quoted in chapter 31, Sale under Power of Sale, Sec. 340.

(a) Fitzgerald's Trustee v. Mellersh, [1892] 1 Ch. 385.

(b) This section applies only to a mortgage executed after the 1st of July, 1880. R.S.C. 1906, c. 120, s. 11.

In an action to compel a mortgagee in Great Britain to accept the principal money and interest due on a ten-year mortgage, which had run over six years, it was held that the foregoing section is intra vires of the dominion parliament and is not restricted in its application to such mortgages as are mentioned in s. 6 of the act, but applies to every mortgage on real estate executed after the 1st of July, 1880, where the money secured "is not under the terms of the mortgage payable till a time more than five years after the date o,f the mortgage." It was also held that the loan having been made, the property being situate, and the mortgage giving the option of payment, in Canada, the law of Canada must govern in relation to the contract and its incidents and that the tender made as described in the judgment was sufficient (d).

A short time after this decision, and doubtless because the question of legislative jurisdiction was therein raised (e), a similar statute was passed in Ontario, and it is now provided by the Mortgages Act, R.S.O. 1914, c. 112, s. 17, as follows:

(c) The sections referred to relate to the rate of interest and are discussed in chapter 29, Interest, Sec. Sec. 312, 313.

(d) Bradburn v. Edinburgh Life Assurance Co., 1903, 5 O.L.R. 657; Cf. In re Parker, Parker v. Parker, 1894, 24 O.R. 373.

(e) As to the question of legislative jurisdiction, see also chapter 29, Interest, Sec. 318.

17.- (1) Where any principal money or interest secured by a mortgage of freehold or leasehold property, made after the 1st day of July, 1903, is not, under the terms of the mortgage, payable till a time more than five years after the date of the mortgage, then, if, at any time after the expiration of such five years, any person liable to pay or entitled to redeem tenders or pays to the person entitled to receive the money the amount due for principal money and interest to the time of such tender or payment, together with three months' further interest in lieu of notice, no further interest shall be chargeable, payable or recoverable at any time thereafter on the principal money or interest due under the mortgage.

(2) Nothing in this section shall affect the provisions of subsection 5 of section 35 of The Loan and Trust Corporations Act, or shall apply to any mortgage given by a joint stock company or other corporation nor to any debenture issued by any such company or corporation for the payment of which security has been given on freehold or leasehold property.