The doctrine of consolidation'is not affected by the provision of s. 73 of the Registry Act that "tacking shall not be allowed in any case to prevail against the provisions of this Act" (n). Even as to tacking the provision in question is unnecessary and therefore inoperative. No doctrine legal or equitable can "prevail against," that is, override, a statute passed by competent authority containing provisions which are inconsistent with the doctrine, and, as will be seen presently, the fact that successive mortgages are registered will usually exclude the doctrine of tacking. In any event the provision as to tacking has no application to the doctrine of consolidation. Tacking and consolidation are quite distinct and depend upon different principles, although the terms have sometimes been confused in the cases.

Consolidation is a doctrine relating to the equity of redemption. It is an illustration of the maxim that he who seeks equity must do equity, and arises where two or more mortgages are made by the same mortgagor on different properties and held by the same mortgagee or assignee.

Tacking properly so-called is a doctrine relating to priorities between competing mortgagees of the same property (o).

(n) Dominion Savings and Investment Society v. Kittridge, 1876, 23 Gr. 631. As to the provision of the Registry Act quoted in the text, see chapter 8, The Registry Act, Sec. 75.

(o) The very early case of Bovey v. Skipwith, 1671, 1 Cas. in Ch. 201, in the reign of Charles II, affords an illustration both of consolidation and of tacking. There was (1) a mortgage (apparently) with conveyance of the legal estate of two properties; (2) an assignment of the equity of redemption of the two properties to a second mortgagee; (3) a third mortgage of one of the properties only without notice of the second mortgage. The third mortgagee bought and took a transfer of the first legal mortgage. It was held, first, that he might tack his equitable third mortgage to the first mortgage, so as to gain priority over the second mortgage, and, secondly, that having done so he might consolidate his third mortgage on one property with the first mortgage on both properties and there is nothing in the act to exclude the doctrine of tacking, but if the mortgages are registered their priorities are governed by the act without reference to the doctrine of tanking (t).

It is an illustration of the maxim that where the equities are equal, the law shall prevail, and arises where a third mortgage is taken without notice of the second. If the third mortgagee gets in the legal estate by purchasing the first mortgage, he is allowed to "tack" the third mortgage to the first mortgage, and obtains priority as to both over the second mortgage. The doctrine is the logical result of the priority prima facie accompanying the possession of the legal estate. The first mortgage is of course entitled to priority, and the legal estate of the mortgagee combined with the fact that he took the third mortgage for value in good faith and without notice gives him priority as to that mortgage also over the equitable interest of the second mortgagee (p).

It is essential that the person who seeks to gain priority over a second mortgage by virtue of the doctrine of tacking should have taken the third mortgage without notice of the second mortgage (q). If he takes without notice and registers his mortgage before the registration of the second mortgage, he gains priority by virtue of the Registry Act (r). If the second mortgage is registered first, its registration operates as notice to the third mortgagee and the doctrine of tacking is therefore excluded (s). If neither mortgage is registered hold the two properties as against the second mortgagee until all that was due to him on both securities should be satisfied. Pledge v. White, [1896] A.C. 187, at pp. 193-194, 18 R.C. 264, at pp. 270-271. (p) The equitable rules as to priorities between legal and equitable mortgages respectively are discussed in chapter 7, and in Sec. 68 the doctrine of tacking is stated as one of the phases of the wider doctrine of purchase for value without notice. The unfortunate second mortgagee who loses his priority as a result of the doctrine of tacking receives at least some words of sympathy in Federal Life Assurance Co. v. Stinson, 1906, 13 O.L.R. 127, at p. 141, S.C. sub nom. Scott v. Swanson, 1907, 39 Can. S.C.R. 229.

(q) See chapter 7, Sec. 68. (r) See chapter 8, Sec. 72.

(s) See Sec. 73. Cf. Pierce v. Canada Permanent Loan Co., 1894, 25 O.R. 671, at p. 677, s.c. 23 O.A.R. 516.