(1) Mortgage of an equity of redemption. After a mortgagor has made a legal mortgage he has merely a right to redeem and any subsequent mortgage is necessarily an equitable mortgage (m). The effect of a second mortgage is two-fold. It transfers to the second mortgagee the right to redeem the first mortgage and creates a new right in favour of the mortgagor, namely, to redeem the second mortgage. This process can be repeated ad infinitum in the case of third and subsequent mortgages (n). The mortgages subsequent to the legal mortgage are inoperative at law, but in equity they operate toties quoties as mortgages of the mortgagor 's equity of redemption.

(h) The Statute of Frauds, 29 Car. 2, c. 3, s. 4; R.S.O. 1914, c. 102, s. 5.

(i) Oral evidence is admissible to prove part performance, but the mere payment by the lender of the amount agreed to be lent on the security of the land is not sufficient part performance. Ex parte Hooper, 1815, 19 Ves. 477; Ex parte Hall, In re Whitting, 1879, 10 Ch. D. 615, at p. 619; Maddison v. Alderson, 1883, 8 App. Cas. 467, at p. 479; Chaproniere v. Lambert, [1917] 2 Ch. 356 (a case of payment of rent in advance in respect of a parol agreement for a lease of premises of which the lessee had not taken possession).

(j) All mortgages under the land titles system are, however, merely charges. See chapter 10, The Land Titles Acts, Sec. 93, as to the distinction between a statutory mortgage and a legal mortgage.

(k) That is, if the land is already subject to a legal mortgage. See Sec. 43.

(I) See chapter 10, Sec. 98, as to the use of the terms "legal mortgage" and "equitable mortgage" under the land titles system, and Sec. 97 as to the validity of unregistered charges under that system. Instances of equitable mortgages will be furnished by a number of cases decided under the Land Titles Acts cited in the present chapter.

(2) Mortgage of other equitable interest.

Certain land was bought and paid for by one W. H. Fyfe and at his request was conveyed by the vendor to the purchaser's son, W. G. Fyfe (an infant), to be held by him in trust for the purchaser. The purchaser afterwards signed his son's name to a mortgage of the land, adding his own name as a witness. It was held that the instrument created a valid charge in equity (o).

So if a cestui que trust under a trust of land purported to mortgage the land or his interest therein without the concurrence of the trustee or other person having the legal estate the mortgage would be equitable (p).

(m) Sadler v. Worley, [1894] 2 Ch. 170, at p. 173; Aikins v. Blain, 1867, 13 Gr. 646.

(n) See chapter 14, Transferee of the Equity of Redemption, Sec. 131. As to right to the legal estate in ,the event of the payment of the first mortgage, see chapter 19, Discharge or Reconveyance, and chapter 20, Right to Assignment of Mortgage.

(o) Dennistoun v. Fyfe, 1865, 11 Gr. 372.

(p) Memo dat quod non habet. See. chapter 2, Mortgage at Common Law, Sec. 15. Strahan, Law of Mortgages, 2nd ed., 11-12, mentions some exceptional cases, e.g. under a settlement a power to revoke and declare new uses may he vested in a person who has not the legal estate, and under the English Settled Land Act, 1882, an equitable life tenant of settled land may in certain circumstances convey the legal estate. Conversely, the general rule is that a cestui que trust may make an equitable mortgage, but this rule is subject to exception in the case of a married woman as regards any separate property which she is restrained from anticipating. See also Strahan, op. cit., at pp. 56-57.