It is provided in Ontario by rule 410 that upon an order of reference the master may "set occupation rent" (r).

If a mortgagee is himself in actual occupation of any portion of the mortgaged property, but not otherwise, he will be chargeable with an occupation rent based upon the value of the property (s), a fair rental such as an ordinary tenant might be expected to pay (t). He will not be liable for occupation rent if he lets a lessee into possession before the lessee is entitled to possession under his lease, although he may be liable for his wilful default in not getting rent which he should have got (u).

(n) Riceiv. George, 1872' 19 Gr. l74.

(o) In re Prytherch, Prytherch v. Williams, 1889, 42 Ch.D. 590; County of Gloucester Bank v. Rudry Merthyr, etc., Colliery Co., [1895] 1 Ch. 629. As to the appointment of a receiver generally, see chapter 32, infra.

(p) National Bank of Australasia v. United Hand-in-Hand and Band of Hope Co., 1879, 4 App. Cas. 391; Hall v. Heward, 1886, 32 Ch.D. 430. For this reason a mortgagee in possession is not bound under s. 3 of the Mortgages Act to execute an assignment of the mortgage instead of reconveying to the person entitled; see chapter 20, Right to Assignment of Mortgage, Sec. 196.

(q) Hall v. Heward, supra.

(r) See Chapter 27, Sec. 293.

(s) Lord Trimleston v. Hamill, 1810, 1 Ball & B. 377.

(t) Coldwell v. Hall, 1862, 9 Gr. 110; White v. City of London Brewery Co., 1889, 42 Ch.D. 237.

As between mortgagor and mortgagee there is nothing to prevent the mortgagee from taking possession at a fair and reasonable rent agreed upon between them. In such a case the mortgagee is not a "mortgagee in possession" in the technical sense of the term. A subsequent encumbrancer, however, who becomes such before the first mortgagee enters into possession, is not bound by such an arrangement; and the master may charge the first mortgagee with a fair occupation rent although it exceeds that stipulated for (v).

Where a mortgagee is in occupation of the mortgaged premises, the master should charge him with occupation rent up to the day appointed for payment; so, where it appeared that a mortgagee in such circumstances had been charged with occupation rent only to the date of the master's report, and had since continued in possession, the final order for foreclosure was refused (w).

The holder of a mortgage went to reside with his sister, the widow of the mortgagor, upon the mortgaged premises, but asserted no claim or right to possession as mortgagee until some years afterwards, when the widow, being about to marry, desired her brother to leave. The brother was charged with occupation rent from that period, not from the time of his going to reside on the property; and it was held that such assertion of right had not the effect of referring back his possession to the time when he first acquired the right or went to reside on the property (x).

(u) Shepard v. Jones, 1882, 21 Ch.D. 469.

(v) Court v. Holland, 1881, 29 Gr. 19; Gilmour v. Roe, 1874, 21 Gr. 284.

(w) Pipe v. Shafer, 1868, 1 Chy. Ch. (Ont.) 251. (x) Paul v. Johnson, 1866, 12 Gr. 474.