The equitable nature of a mortgage may be due either to the fact that the mortgaged property is equitable, or to the fact that the mortgagor has not executed an instrument which is sufficient to transfer the legal estate. In the first case the mortgage, be it never so formal, cannot be a legal mortgage, in the second case it is the informality of the mortgage which prevents it from being a legal mortgage. These alternatives will be discussed separately (e). An equitable mortgage may also be created by a deposit of title deeds (f).

Except in the case of a mortgage by deposit of title deeds (g), an equitable mortgage of an interest in land is not enforceable by action " unless the agreement upon which such action shall be brought or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith or some person thereunto by him lawfully authorized" (h), or unless there has been part performance of the contract sufficient to take it out of the statute (i).

(c) The judgments in London County and Westminster Bank v. Tompkins, [1918] 1 K.B. 515, contain an interesting discussion of the terms "mortgage," "equitable mortgage" and "equitable charge."

(d) 21 Halsbury, Laws of England, p. 74. The question of the priority of an equitable mortgage as regards a legal mortgage or another equitable mortgage will be discussed in chapter 7, Equitable Principles governing Priorities. As to equitable mortgages generally, see the notes to Russel v. Russel in 2 W. & T.L.C. Eq., 85 ff. As to the registration of equitable mortgages in Ontario, see s. 36 of the Registry Act (quoted in Sec. 71) and Sec. 75.

(e) See Sec. Sec. 43 and 44. (f) See Sec. 45.

(g) As to which, see Sec. 45.

If a statutory mortgage under the Land Titles Acts maybe considered for the present purpose as being equivalent to a mortgage of the legal estate (j), equitable mortgages exist under those acts in practically the same circumstances as in the case of land not under the land titles system with this important exception, that a second mortgage in the case of land not under the land titles system is an equitable mortgage, the mortgagor not having the legal estate (k), while under the Land Titles Acts a second mortgage is of exactly the same nature as a first mortgage (I).