In England prior to the passing of Lord Cranworth's Act

(g) In re Chawner's Will, 1869, L.R. 8 Eq. 569. (h) 1861, 29 Beav. 123 at p. 128. (i) McKay v. Reed, 1864, 1 Chy. Ch. (U.C.) 208. (j) Ashton v. Corrigan, 1871, L.R. 13 Eq. 76; cf. Hermann v. Hodges, 1873, L.R. 16 Eq. 18. (k) See Sec. 333, infra. (l) See Sec. 332, infra.

(m), in order that a mortgagee might sell the mortgaged lands without judicial proceedings it was necessary that a power of sale should be given expressly by the mortgage deed. By that act a power of sale was implied in certain cases. The sections of Lord Cranworth's Act relating to implied powers of sale were repealed by the Conveyancing Act, 1881 (n), but not so as to affect mortgages made prior to 1882. The last mentioned statute (s. 19) gives to a mortgagee whose mortgage is made by deed a power of sale somewhat similar to the power given in Ontario by the Mortgages Act, except in so far as a contrary intention is expressed in the mortgage deed, and subject to the terms of the mortgage deed. The statute also provides as follows:

20. A mortgagee shall not exercise the power of sale conferred by this Act unless and untilought to be paid by the mortgagor, have the following powers to the like extent as if they had been in terms conferred by the mortgage but not further, namely:

(i) Notice requiring payment of the mortgage money has been served on the mortgagor or one of several mortgagors, and default has been made in payment of the mortgage money, or of part thereof, for three months after such service (o); or

(ii) Some interest under the mortgage is in arrear and unpaid for two months after becoming due; or

(iii) There has been a breach of some provision contained in the mortgage deed or in this Act; and on the part of the mortgagor, or of some person concurring in making the mortgage, to be observed or performed, other than and besides a covenant for payment of the mortgage money or interest thereon.

It is provided in Ontario by the Mortgages Act, R.S.O. 1914, c. 112, as follows (p):

19. Where any principal money is secured by mortgage of land executed after the 11th day of March, 1879, the mortgagee shall, at any time after the expiration of four months from the time when the principal money shall have become payable, according to the terms of the mortgage, or after any interest on the principal money shall have been in arrear for six months, or after any omission to pay any premium on any insurance which, by the terms of the mortgage.

(m) 23 & 24 V. c. 145 (1860). (n) 44 & 45 V. c. 41. (o) See Sec. 337, infra.

(p) By s. 2 "mortgagee" includes any person deriving title under the original mortgagee.

(a) A power to sell, or concur with any other person in selling, the whole or any part of the mortgaged property by public auction or private contract, subject to any reasonable conditions he may think fit to make.and to buy in at an auction and to rescind or vary contracts for sale, and to resell the land, from time to time, in like manner without being answerable for any loss occasioned thereby;

(b) A power to insure and keep insured against loss or damage by fire any building or any effects or property of an insurable nature, whether affixed to the freehold or not, being or forming part of the mortgaged property, and the premiums paid for any such insurance shall be a charge on the mortgaged property, in addition to the mortgage money and with the same priority and with interest at the same rate as the mortgage money (q).

20. A receipt for purchase money given by the person exercising the power of sale by the next preceding section conferred, shall be a sufficient discharge to the purchaser, who shall not be bound to see to the application of the purchase money.

21.- (1) No sale under the power conferred by section 19 shall be made until after two months' notice in writing, form 1, has been given to every subsequent encumbrancer, and to the mortgagor, either personally or at his usual or last place of residence in Ontario.

(2) The notice may be given at any time after any default in making a payment provided for by the mortgage.

(3) In case of the death of the person entitled subject to the mortgage, and of his interest passing to an infant, the notice shall be given to his personal representative as well as to the infant.

(4) The notice to the infant shall be served upon his guardian, and if he has no guardian, upon the Official Guardian, and in every case upon the infant himself if over the age of twelve years.

22. Where a conveyance has been made in professed exercise of the power of sale conferred by section 19 the title of the purchaser shall not be liable to be impeached on the ground that no case had arisen to authorize the exercise of such power, or that such power had been improperly or irregularly exercised, or that such notice has not been given; but any person damnified by an unauthorized, improper or irregular exercise of the power, shall have his remedy against the person exercising the power.

23. The money arising from the sale shall be applied by the person receiving the same as follows:

(q) See chapter 34, Fire Insurance, Sec. 372.

Firstly, in payment of all the expenses incident to the sale or incurred in any attempted sale; Secondly, in discharge of all interest and costs then due in respect of the mortgage under which the sale was made; Thirdly, in discharge of all the principal money then due in respect of such mortgage; and Fourthly, in payment of the amounts due to the subsequent encumbrancers according to their priorities; and the residue shall be paid to the mortgagor.

24. The person exercising the power of sale shall have power to convey or assign to and vest in the purchaser the property sold, for all the estate and interest therein of the mortgagor and of which he had power to dispose.

25. At any time after the power of sale shall have become exercisable, the person entitled to exercise the same shall be entitled to demand and recover from the mortgagor all deeds and documents in his possession or power relating to the mortgaged property, or to the title thereto, which he would have been entitled to demand and recover if the property had been conveyed, appointed, surrendered or assigned to and was then vested in him for all the estate and interest of the mortgagor and of which he had power to dispose; and where the legal estate is outstanding in a trustee the mortgagee, or any purchaser from him, shall be entitled to call for a conveyance of the legal estate to the same extent as the mortgagor could have called for such a conveyance if the mortgage had not been made.

26. So much of this Part as confers a power to sell shall not apply in the case of a mortgage which contains a power of sale except as in section 27 provided; and so much as confers a power to insure shall not apply in the case of a mortgage which contains a power to insure; nor shall any of the provisions of this Part apply to a mortgage which contains a declaration that this Part shall not apply thereto.

27.- (1) Where a mortgage made in pursuance of The Short Forms of Mortgages Act contains a power of sale in the form no. 14, in Column One of Schedule B to that Act, the mortgagee may, in exercising the power, in lieu of taking the proceedings provided for by such form, Column Two, take proceedings under and have the benefit of the provisions of this Part, except that such power shall not be exercisable until after at least four months' default and at least two months' notice, or such longer periods as may by the power contained in such mortgage be fixed therefor, and this Part shall apply to a sale made under such power.

(2) Where a mortgage purporting to be made in pursuance of The Short Forms of Mortgages Act contains a power of sale which provides for a sale without notice, the mortgagee may take proceedings to sell under and have the benefit of the provisions of this Part as fully and effectually as if the mortgage had not contained a power of sale.

(3) Subsection 2 shall apply to all mortgages whether heretofore or hereafter made (r).

Form 1, referred to in s. 21 is as follows:

Notice of Sale Under Mortgage.

I hereby require you on or before the day of 19 ,

(a day not less than two calendar months from the service of the notice, and not less than six months after the default), to pay off the principal money and interest secured by a certain mortgage dated the day of 19 , and expressed to be made between

(here state parties and describe mortgaged property), which mortgage was registered on the day of 19 (and if the mortgage has been assigned add: and has since become the property of the undersigned). And I hereby give you notice that the amounts due on the said mortgage for principal, interest, and costs respectively, are as follows: (set the same forth).

And unless the principal money, interest and costs are paid on or before the said day of 19 , I shall sell the property comprised in the said mortgage under the authority of The Mortgages Act. Dated the day of 19 .

The foregoing provisions do not apply to a mortgage which contains an express power of sale except in the two cases provided by s. 27. They do not apply, for instance, if the mortgage is not made in pursuance of the Short Forms of Mortgages Act and contains an express power of sale which for any reason is defective, or if the mortgage is made in pursuance of the act and contains a power of sale which departs from the short form in any respect other than in providing for a sale without notice.

Other questions arising under the foregoing provisions or with regard to their subject matter will be discussed below (s).

(r) Sub-s. 1 dates from 1888 and ub-s. 2 from 1890. As to the decisions which were the cause of the passing of these amendments, see Sec. 335, infra.

(s) As to notice of exercising the power of sale, see Sec. 339; as to the conduct of the sale, see Sec. 341; as to the conveyance and its effect, see Sec. 343; as to the application of the proceeds of the sale, see Sec. 344.