An equitable mortgagee by deposit of title deeds or by formal mortgage of an equity of redemption is entitled to enforce his security by foreclosure or sale, but a person who has a mere equitable charge is entitled to sale not foreclosure (x). In the event of foreclosure under an equitable mortgage the judgment or order foreclosing the owner of the equity should either vest the land in the plaintiff or direct the defendant to convey the land to the plaintiff (y).

An agreement to borrow or lend money on mortgage will not be enforced by specific performance so long as it remains executory and neither party to it performs any of its terms. The remedy, if any, is in damages (z). But an agreement to give security (a) for a past debt in consideration of forbearance or for a present actual advance will be enforced by specific performance (b). So also where only part of the amount agreed has been advanced (c).

Where an agreement for a mortgage contains a stipulation that the intended mortgage shall contain the usual clauses, a personal covenant for payment of principal and interest will be inserted by the court; also a power of sale unless it be implied by statute (d). If the agreement is under seal the power of sale may be exercised before the formal mortgage is executed (e).

(v) Mountford v. Scott, 1823, Turn. & R. 274.

(w) In re New, Ex parte Farley, 1841, 1 Mont. D. & DeG. 683.

(x) See chapter 24, Action for Foreclosure or Sale, Sec. 231.

(y) See chapter 24, Sec. 244.

(z) Rogers v. Challis, 1859, 27 Beav. 175, 18 R.C. 278; Sichel v. Mosenthal, 1862, 30 Beav. 371, 18 R.C. 282; Larios v. Bonany y Guerty, 1873, L.R. 5 P.C. 346.

(a) Assuming that there is either a memorandum sufficient under the Statute of Frauds or part performance sufficient to take the case out of the statute. See Sec. 42, supra.

(b) Alliance Bank v. Broom, 1862, 2 Dr. and Sm. 289; Ex parte Jones, 1835, 4 D. & C. 750.

(c) Hunter v. Lord Langford, 1828, 2 Moll. 272.

Under an agreement to execute a legal mortgage with such powers and provisions and in such form as the mortgagee may require, the mortgagee is not entitled to insert in the mortgage a clause excluding the operation of the English Conveyancing Act, 1881, s. 17 (abolishing consolidation of mortgages) (f).

In the absence of any stipulation to the contrary in an agreement to give a mortgage on lands, the general form and terms of the mortgage must be in conformity with the form provided in the Short Forms of Mortgages Act (g).

A mortgagee by deposit of title deeds may enforce the completion of the security by requiring a legal conveyance from his debtor (h). An equitable mortgagee who commences an action for foreclosure may obtain an injunction restraining the owner from parting with the legal estate (i).

As an equitable mortgagee does not convey the legal estate, the general rule is that an equitable mortgagee is not entitled to bring an action for possession against the mortgagor in occupation of the mortgaged lands (j), or, apart from express contract between the mortgagor and the equitable mortgagee, to require payment of rent by tenants in occupation (k). The equitable equivalent to the taking of possession is the appointment by the court of a receiver of the rents and profits (I).

(d) Saunders v. Milsome, 1866, L.R. 2 Eq. 573; Cockburn v. Edwards, 1881, 18 Ch. D. 449.

(e) Re Solomon and Meagher's Contract, 1889, 40 Ch.D. 508. (f) Farmer v. Pitt, [1902] 1 Ch. 954.

(g) Reynolds v. Foster, 1912, 3 D.L.R. 506, 3 O.W.N. 983.

(h) Ex parte Wright, 1812, 19 Ves. 255; James v. James, 1873, L.R. 16 Eq. 153.

(i) London and County Banking Co. v. Lewis, 1882, 21 Ch.D. 490.

(j) See chapter 22, Action for Possession, Sec. 212, where the exception in the case of a mortgage which conveys the equity of redemption is mentioned.