In Smith v. National Trust Co., Duff J. (d), referring to the Manitoba Real Property Act, says:

"The Act does not.........treat the mortgage authorized by it as an instrument immediately effecting any dismemberment of the mortgagor's registered title. The operation of the statute is rather this: when a registered owner wishes to charge his registered title as security for a debt, he is to execute an instrument by which he declares that he 'mortgages' his land and that instrument being registered the mortgagee becomes invested with such rights in respect of the possession of the land and its profits and the registered title becomes (for the benefit of the mortgagee) subject to such powers of disposition as the statute expressly or by implication declares. It is in these rights and powers that the virtue of the mortgage as a real security consists; and it is, consequently, to the statute that we must primarily resort to ascertain what are the rights and powers incidental to such a security.

(a) McKillop & Benjafield v. Alexander, 1912, 45 Can. SCR. 551, 1 D.L.R. 586, affirming Alexander v. Gesman, 4 S.L.R. 111.

(b) Coast Lumber Co. v. McLeod, 1914, 7 S.L.R. 382, 20 D.L.R. 343.

(c) Muller v. Schwalbe, Re Royal Bank and Banque d' Hoche-laga, 1914, 8 A.L.R. 125, 19 D.L.R. 19, where there is a discussion of the cases of Stephen v. Bannan and Gray, 1913, 6 A.L.R. 418, 14 D.L.R. 333, and McKillop & Benjafield v. Alexander, supra.

(d) Delivering the judgment of the majority of the court, 1912, 45 Can. S.C.R. 618, at pp. 640, 641, 1 D.L.R. 698, at pp. 712, 713. As to the question of the validity of the contractual power of the sale decided in this case, see chapter 31, Sale under Power of Sale, Sec. 345.

"It is argued that the view thus stated is too narrow, and another view is put forward, which is this: that the mortgage authorized by the Act is to be regarded as having annexed to it all the legal incidents which by law belong to a mortgage at common law and as being capable of having annexed to it by contract all the incidents which may by contract be annexed to a mortgage at common law in so far as such incidents are not expressly or by necessary implication excluded. I think in either view the practical result of this appeal must be the same; but I must say that it seems to me to be an artificial and unnatural reading of the statute to regard the mortgage contemplated by it as primarily a common law mortgage, and I think that in adopting such a reading one incurs some risk of losing the point of view from which the legislator envisaged the problem to which he was addressing himself. There is much in the Act to indicate an intention on the part of its authors that under the statutory mortgage the powers and rights of the mortgagee should in substance be economically equivalent to those possessed by a mortgagee under a common law mortgage; yet, juridically considered, there is-as I have indicated-this essential difference between the two instruments, viz.: that at common law the rights and powers of the mortgagee as such in respect of the mortgaged property are rights and powers which are incidental to the legal or equitable estate vested in him as mortgagee while under the statutory instrument the rights and powers of the mortgagee do not and cannot take their efficacy from any such estate because none is vested in him and his rights and powers must consequently rest directly upon the provisions of the statute itself.

"This view, of course, does not involve the consequence that the mortgagee's rights are those only which the statute expressly gives him. It is obvious that many things are left to implication; and where, in any particular case, it appears that the rules governing reciprocal rights of the mortgagor and mortgagee under the mortgage contract in relation to the mortgaged property are left to implication then it is a question to be determined 'upon an examination of the statute as a whole how far the rights of the parties are to be governed by the rules of law which, apart from the statute, are applicable between mortgagor and mortgagee."

The remedies of a mortgagee under the land titles system will be mentioned in their appropriate places in subsequent chapters, and only some observations of a general nature need be made here.

Apart from statute a mortgagee's remedies may be classified (e) as follows:

(1) Remedies available to the mortgagee without recourse to the courts by reason of his having the legal estate in the mortgaged land, for instance, the right, subject to a redemise clause, to take possession of the mortgaged land, or, if the land is in the occupation of a tenant under a paramount title, to compel payment of the rent by the tenant.

(2) Remedies available to the mortgagee by recourse to the court, chiefly under the equitable jurisdiction of the court, for instance, the right to foreclosure or sale, or the right to obtain the appointment by the court of a receiver.

(3) Remedies available to the mortgagee by reason of special covenants or contractual stipulations contained in the mortgage, for instance, the right to sue on the covenant for payment, to sell under power of sale, to distrain or to appoint a receiver.

Remedies of any of the three classes above mentioned may be available to a mortgagee under the land titles system if the Land Titles Act in question has expressly or impliedly made them available to a mortgagee. The following special ques-tions may arise as to the several classes of remedies.

(1) With regard to the first class it may be generally stated that a mortgagee under the land titles system does not possess the legal estate and therefore is not entitled to the remedies incident to that estate, unless the statute expressly or impliedly gives them to him (f).

(e) See Thorn, op. cit., pp. 288 ff. for a classification of the mortgagee's remedies on a somewhat different principle and for a discussion of those remedies under the land titles system.