(1) Defect of form.

If a document in the form of a legal mortgage is signed but not sealed, or for any other reason is not sufficient to transfer the legal estate (q), it is an equitable mortgage.

An instrument intended to operate as a legal mortgage which fails so to operate for want of some formality is valid as an equitable charge and gives the mortgagee a right to a perfected assurance (r).

(2) Agreement to give a mortgage.

An agreement in writing duly signed to execute a legal mortgage is an equitable mortgage, operating as a present charge on the lands described in the agreement (s).

An English contract to give a mortgage on foreign land, although the mortgage has to be perfected according to the lex situs, is a contract to give a mortgage which-inter partes -is to be treated as an English mortgage and subject to such rights of redemption and such equities as the law of England regards as necessarily incident to a mortgage (t).

(q) See chapter 2, Mortgage at Common Law, Sec. 11, as to the requirements of a legal mortgage.

(r) Mestaer v. Gillespie, 1805, 11 Ves. 621.

(s) Rooker v. Hoofstetter, 1896, 26 Can. S.C.R. 41, 22 O.A.R, 175. As to specific performance of the agreement to give a legal mortgage, and generally as to the enforcement of the equitable mortgages, see Sec. 46. As to an agreement to execute a mortgage under the land titles system, see Gilbert v. Ullerich, 1911, 4 S.L.R. 56, affirmed sub nom Gilbert v. Reeves & Co., 4 S.L.R. 97.

(t) British South Africa Co. v. De Beers Consolidated Mines, [1910] 2 Ch. 502, at pp. 515, 524, S.C. sub nom. De Beers etc., v. British South Africa Co., [1912] A.C. 52; In re Smith, Lawrence v. Kitson, [1916] 2 Ch. 206.

(3) Charge on land.

An agreement in writing duly signed, however informal, by which any property is made a security for a debt due or a present advance, creates an equitable charge upon the property (u). An equitable charge entitles the holder to payment out of the property, but it does not amount to an agreement to give a legal mortgage, and the strict mode of enforcing it is by sale and not by foreclosure (v).

An immediate charge on property has been held to be created by a power of attorney to receive the rents and profits until payment of a loan (w), by a deed appointing a receiver of rents and profits to secure an annuity (x), by a letter stating that the money intended to be invested on mortgage of certain lands at interest was in the hands of the writer who was interested in those lands (y), by a letter authorizing a creditor to retain the debtor's title deeds as security for the debt till the debtor's affairs should be settled (z), or by an acknowledgment of a debt with an undertaking to hold the title deeds of a house as security for the same (a).

An incorporated company having executed a bond, which though it contained no direct words of charge was evidently intended to give a lien on the property of the company, it was held that the lien was sufficiently created (6).

(u) Tebb v. Hodge and Cutten, 1869, L.R. 5 C.P. 73, 18 R.C. 16; and cases cited in the notes, 18 R.C. at pp. 23 ff.; Rooker v. Hoofstet-ter, supra; Matthews v. Cartwright, 1742, 2 Atk. 347; Burn v. Burn, 1797, 3 Ves. 573; Sawyer and Massey v. Waddell, 1904, 6 N.W.T. L.R. 45 (a case under the Land Titles Act).

(v) Matthews v. Goodday, 1861, 31 L.J. Ch. 282; 21 Halsbury, Laws of England, 83. See chapter 24, Action for Foreclosure or Sale, Sec. 231.

(w) Spooner v. Sandilands, 1842, 1 Y. & C. Ch. Cas. 390; Abbott v. Stratten, 1846, 3 Jo. & Lat. 603.

(x) Cradock v. Scottish Provident Institute, 1894, 63 L.J. Ch. 15, 69 L.T. 380, 70 L.T. 718.

(y) Re Crowdy, Burges v. Crowdy, 1882, 46 L.T. 71.

(z) Fenwick v. Potts, 1856, 8 DeG. M. & G. 506.

(a) Baynard v. Woolley, 1855, 20 Beav. 583.

A deed poll to secure a sum of money, in which the words were "mortgage all that certain parcel of land, etc, to have and to hold the aforesaid land unto the said J. R., his heirs, executors, administrators and assigns," was held sufficient to pass the right of possession to the grantee (c).

In an instrument under seal the words "and for securing, etc, the said P.P. doth hereby specially bind, oblige, mortgage and hypothecate the said piece or parcel of land, etc." pass no interest; they only shew an intention to create a charge or lien (d).

The intention of the parties as to the terms and extent of the security may be established by parol evidence (e). The agreement need not specifically describe the property if it is otherwise sufficiently ascertained or ascertainable (f), and the charge created by the agreement may extend to after acquired lands (g). A general charge for value on all the existing property of the mortgagor is not void for uncertainty if the property to which it attaches can be ascertained at the time of enforcement, and such a charge is not contrary to publie policy (h).