In England by the Conveyancing Act, 1881, s. 17, the doctrine of consolidation is excluded as to mortgages made on or after the first day of January, 1882, if and so far as a contrary intention is not expressed in the mortgage deeds or one of them (i).

(g) 1882, 19 Ch.D. 630, at p. 633. (h) 1867, L.R. 2 C.P. 593.

In Ontario the propositions already stated must be qualified in consequence of the Registry Act. The right of consolidation being merely an equitable right it is subject to be defeated by the provision of s. 73 that "no equitable lien, charge or interest affecting land shall be valid, as against a registered instrument executed by the same person, his heirs or assigns." (j) The right of consolidation cannot therefore be asserted as against the assignee for value (k) of the equity of redemption of one parcel who takes without notice of the existence of the mortgage made by the same mortgagor and held by the same mortgagee upon another parcel and whose assignment is duly registered (I). On the other hand if the two mortgages are registered and a person subsequently takes a conveyance or mortgage of both parcels, his search in the registry office will disclose the fact that both parcels are subject to mortgages made by the same mortgagor and held by the same mortgagee and the purchaser or mortgagee of the two equities will therefore take with notice of and subject to the right of consolidation (m).

(i) Bird v. Wenn, 1886, 33 Ch.D. 215; Farmer-v. Pitt, [1902] 1 Ch. 954.

(j) See chapter 8, The Registry Act, Sec. 75.

(k) Johnston v. Reid, 1881, 29 Gr. 293. In this case an execution creditor obtained a second mortgage of one parcel in consideration of time being given for payment and registered his mortgage. As against him it was held that a prior mortgagee of both parcels could not consolidate, although if the second mortgage had not been given and registered, the mortgagee might have consolidated as against a mere execution creditor.

(I) Brower v. Canada Permanent Building Association, 1877, 24 Gr. 509; Miller v. Brown, 1883, 3 O.R. 210. It is assumed, of course, that there is nothing on the abstract of title of the parcel purchased to disclose the existence of the mortgage on the other parcel.

(m) Dominion Savings and Investment Society v. Kittridge, 1876, 23 Gr. 631, at p. 635. As to the effect of registration as notice, see chapter 8, The Registry Act, Sec. 73.