In Ontario it is provided by the Land Titles Act, R.S.O. 1914, c. 126, s. 35, as follows:

35. Subject to any entry to the contrary on the register the registered owner of a charge with a power of sale, in accordance with the terms of the power, may sell and transfer the interest in the land which is the subject of the charge, or any part thereof, in the same manner as if he were the registered owner of the land to the extent of such interest therein.

Under this provision the registered owner of a charge may exercise a power of sale expressed in the charge precisely in the same way as a mortgagee in the case of land not under the Land Titles Act might exercise such express power of sale. The sale proceedings are not subject to the supervision or direction of the master of titles, but when the transfer to a purchaser in pursuance of the power is sought to be registered such evidence must then be furnished to the master of titles as will satisfy him of the regularity of the proceedings and of the validity of the transfer. Upon the registration of the transfer the transferee acquires the registered estate which was the subject of the charge.

(t) R.S.O. 1914, c. 70, s. 12; see chapter 18,Dower and Curtesy in Mortgaged Land, Sec. 174.

(u) Charles v. Jones, 1887, 35 Ch.D. 544.

(v) Mendels v. Gibson, 1905, 9 O.L.R. 94; Thurlow v. Mackeson, 1868, L.R. 4 Q.B. 97.

(w) Pegg v. Hobson, 1887, 14 O.R. 272; Rudge v. RIchens, 1873, L.R. 8 C.P. 358; cf. chapter 23, Action on the Covenant, Sec. 227.

Under the Manitoba, Saskatchewan and Alberta statutes there is prescribed a procedure for sale by the mortgagee under the supervision of the registrar, and this procedure is applicable to every mortgage under the land titles system, provided, in the case of Saskatchewan, that the mortgage contains an express power of sale (x). Sale proceedings under these statutes resemble sale under power of sale rather than sale under the direction of the court in England and Ontario. Inasmuch, however, as these statutory sale proceedings are a necessary preliminary to foreclosure proceedings, it has seemed more convenient to discuss them in connection with the general subject of foreclosure in an earlier chapter.

It remains to mention here only the question whether as an alternative to the statutory remedy by way of sale a contractual power of sale is valid. This question has not been authoritatively decided, but the better view would seem to be that a mortgagee's only right to sell so as to confer upon a transferee an absolute title free from any claim of the mortgagor is by proceedings in the registrar's office or, in the case of Saskatchewan and Alberta, by recourse to the courts in an action for foreclosure or sale.

(x) See chapter 24, Action for Fore closure or Sale, Sec. 247. In Sec. 246 in the same chapter some account is given of the history of the legislation on the subject of sale and foreclosure in Manitoba, Saskatchewan, Alberta, and the Northwest Territories.

Where a mortgage of land under the Real Property Act of Manitoba contained a power of sale without notice but contained no provision dispensing with the official supervision required in the statutory proceedings in the registrar's office, a sale by the mortgagee purporting to be made under that power, without compliance with the statutory requirements or an order of the court, was held to be inoperative to extinguish the registered title of the mortgagor (y). It is true that this decision does not absolutely preclude the view that a contractual power of sale, including a power of attorney to the mortgagee to transfer the mortgagor's registered title to a purchaser, might be so worded as to be effective (z), but the reasons for judgment of the majority of the court support the view that the statutory procedure is intended to be exclusive (a).

(y) Smith v. National Trust Co., 1912, 45 Can. S.C.R. 618, 1 D.L.R. 698.

(z) See Scott, Torrens Title Mortgages, pp. 45 ff; Rollefson v. Olson, 1915, 8 S.L.R. 143, at p. 149, 21 D.L.R. 671, at p. 675.

(a) See also Thorn, The Canadian Torrens System, pp. 288, 292; cr. Re Sun Life Assurance Co. and Widmer, 1916, 26 D.L.R. 147. As to the general principle that a mortgagee has only such powers of disposition as the statute expressly or impliedly declares, see the passages from the judgment of Duff, J. in Smith v. National Trust Co., quoted in chapter 10, The Land Titles Acts, Sec. 99.