It has sometimes been said that a power of sale without notice is oppressive (y), but the validity of such a power has long been established (z). It is reasonable and not unusual for a mortgagee who has a power of sale without notice nevertheless to give notice to the persons equitably interested. The fact that the mortgagee gives notice to such persons or some of them will not prevent him from relying upon his power of sale without notice, where, for instance, there is also a power of sale after notice and the sufficiency of the notice or notices given is attacked (a).

It is usual to insert in the mortgage a power of sale after a certain default and upon notice, and a further power of sale without notice after a longer period of default (6).

Where a deed, absolute in form, is taken as security for a debt, it has been held that the grantee has no power of sale, unless indeed a statutory power of sale can be imported into the deed; nor can the mortgagee foreclose; he holds the land as trustee, and his only remedy, in the absence of the concurrence of the mortgagor, is to have a sale through the court (c). The grantee in such case might, however, confer a good title upon a purchaser in good faith without notice of the grantor's equitable rights. It has also been held that where land is granted by deed absolute in form upon an oral trust, not to hold the property as security, but to sell the property and out of the proceeds to pay the money due to the trustee and other persons with a resulting trust as to any surplus, the trustee may sell without notice to the person equitably entitled, and such sale would be valid even if the trust for sale were set out in the deed (d).

(y) Miller v. Cook, 1870, L.R. 10 Eq. 641, at p. 647; Re Gilchrist and Island, 1886, 11 O.R. 537, at p. 539.

(z) Re British Canadian Loan and Investment Co. and Ray, 1888, 16 O.R. 15, at p. 16; cf. a series of articles and letters in 13 C.L.T. 36, 279 (Jan., Dec, 1893), 14 C.L.T. 47 (Feb. 1894), 15 C.L.T. 1, 40, 112 (Jan., Feb., April, 1895); Clark v. Harvey, 1888, 16 O.R. 159; Canada Permanent Building Society v. Teeter, 1889, 19 O.R. 156; Barry v. Anderson, 1891, 18 O.A.R. 247.

(a) Re British Canadian Loan and Investment Co. and Ray, supra; Uren v. Confederation Life Association, 1917, 40 O.L.R. 536.

(b) A special form of power of sale without notice is suggested in Sec. 333, supra. As to the care to be exercised in making alterations in the short form of power of sale, see Sec. 335.

(c) Hetherington v. Sinclair, 1915, 34 O.L.R. 61, 23 D.L.R. 630; following Pearson v. Benson, 1860, 28 Beav. 598; cf. however, Hamilton v. York and Baldry, 1913, 13 D.L.R. 3 (Alta).