In Ontario the ordinary practice is to use the short form of power of sale provided by the Short Forms of Mortgages Act (t) with such qualifications and additions as may seem advisable.

An express power of sale may, however, take various forms. It may be in the form of a trust for reconveyance on payment of the mortgage debt on the day appointed, and in default of payment for sale, or the estate may be limited to the use of the mortgagee for a term of years with a proviso for redemption, and subject thereto to the use of trustees in fee simple upon trust to sell. The estate may also be limited at once to trustees in fee simple to sell if the mortgage moneys are not paid by the appointed time, with a proviso for redemption.

The appointment of third persons as trustees for sale is, however, not desirable, as this course may occasion delay, inconvenience and greater expense. A mortgagee exercising the power of sale will not be subject to the same restraint as a trustee. Thus where the power of sale was vested in a trustee the court, on the application of the mortgagor, restrained the sale until the trustee should give notice to both the mortgagee and the mortgagor, upon the ground that it was the duty of the trustee to attend to the interests of both mortgagee and mortgagor, but in the same case a motion to restrain the mortgagee from proceeding without notice, made under the apprehension that the power was vested in the mortgagee, had been previously refused (w).

The following form of power of sale may be adopted:

Provided that the said mortgage on default of payment for [one month] may on [one month's] notice enter on and lease or sell the said lands (v).

(t) See Sec. 334, infra.

(u) Anon, 1821, 6 Madd. & G. 10.

(v) The first clause in the suggested power of sale follows the estate and interest therein of the mortgagor and of which he has power to dispose (w).

Provided also that such notice may be effectually given either by the leaving of the same with a grown up person on the said lands if occupied or by the placing of it thereon if unoccupied or at the option of the mortgagee by the mailing of the same in a registered letter addressed to the mortgagor at or by the publication of the same once in some newspaper published in the county in which said lands are situate and shall be sufficient though not addressed to any person or persons by name or designation and notwithstanding any person or persons to be affected thereby may be unborn, unascertained or under disability; and that should default continue for two months a sale may be made hereunder by public auction or private contract or partly one or partly the other, with or without entry on said lands and without any notice whatsoever; and that the whole or any part or parts of the said lands may be sold; and that the proceeds of any sale hereunder may be applied in payment of any costs, charges and expenses incurred about taking, recovering or keeping possession of the said lands or by reason of non-payment or procuring payment of moneys secured hereby or otherwise; and that the mortgagee may sell any of the said lands on such terms as to credit and otherwise as shall appear to him most advantageous and for such prices as. can reasonably be obtained therefor and may make any stipulations as to title or evidence or commencement of title or otherwise which he shall deem proper; and may buy in or rescind or vary any contract for the sale of the whole or any part of the said lands and re-sell without being answerable for loss occasioned thereby, and in the case of a sale on credit the mortgagee shall be bound to pay the mortgagor only such moneys as have been actually received from purchasers after the satisfaction of the claims of the mortgagee, and for any of said purposes may make and execute all agreements and assurances as he shall think fit; and that any purchaser or lessee shall not be bound to see to the propriety or regularity of any sale or lease or be affected by express notice that any sale or lease is improper; and that no want of notice or publication when required hereby shall invalidate any sale or lease hereunder; and that the mortgagee shall have power to convey or assign to and vest in the purchaser the property sold, for all the short form provided by the Short Forms of Mortgages Act, the blanks in that form to be filled by the words within square brackets or such other words indicating the period of default and the length of notice as the parties may agree upon. As to the care to be exercised in making any change in the wording of the short form, see Sec. 335, infra. If the form is strictly followed and the mortgage is expressed to be made pursuant to the Short Forms of Mortgages Act, the word "mortgagee" includes the mortgagee's "heirs, executors, administrators or assigns" and in other respects the power operates as if it were expressed in the corresponding extended form. See Sec. 334, infra.