(f) Smith v. National Trust Co., supra.

(2) With regard to a remedy of the second class it may-have to be considered whether such remedy has been superseded by a similar remedy which is the subject of special provision in the statute or whether in the absence of special provision the jurisdiction of the court to give such remedy exists under the statute or is consistent with its terms.

(3) With regard to remedies of the third class it has to be considered whether a right stipulated for by the mortgagee is deemed to be excluded by reason of the existence of special statutory remedies or to what extent, if at all, the privilege of stipulating for special rights is consistent with the statute or the forms of mortgage prescribed for use under it.

"Special covenants" may be inserted in a mortgage (g) provided they do not conflict with the nature of the instrument or the terms of the statute, and it is customary in a well-drawn mortgage to insert a number of such special provisions (h). In Saskatchewan, Alberta and the Northwest Territories short forms of covenants are provided which if used are to be taken to have the same effect as the corresponding extended forms of covenants set out in the forms appended to the statutes subject to such express exceptions or qualifications as may be introduced into or annexed to the short forms (i). The short forms of covenants are that the mortgagor (1) Has a good title to the said land, that he (2) Has the right to mortgage the land, (3) And that on default the mortagee shall have quiet possession of the land, (4) Free from all incumbrances, that the mortgagor (5) Will execute such further assurances of the land as may be requisite, and that he (6) Has done no act to incumber the land (j).

(g) Man. Schedule D; Sask. form Q; Alta. form N; N.W.T. form O. The references are to the statutes mentioned in Sec. 93, where these forms are also set out.

(h) Cf. Thom, op. cit., pp. 285, 286. A conventional power of sale is not a "special covenant" which is permitted. See chapter 31, Sale under Power of Sale, Sec. 345.

(i) Sask. s. 105; Alta. s. 70; N.W.T. s. 109. In Ontario, by s. 31 (2), certain of the short forms of covenant provided by the Short Forms of Mortgages Act may be used in a charge which is expressed to be made in pursuance of the statute. See chapter 35, Sec. 381.

Although a mortgage under the new system is more akin to an equitable mortgage than to a legal mortgage under the old system (k), the law governing the relations of mortgagee and mortgagor in connection with a legal mortgage is frequently applied to a mortgage under the new system. Whenever either by the express terms of the statute; or by implication, or by any covenant which is permitted by the statute to be inserted in a statutory mortgage, a right arises either the same as or similar to a right existing or which might arise under a legal mortgage, the old law of mortgages is drawn upon for the details in connection with the working out of that right (I).

In Saskatchewan, Alberta and the Northwest Territories the language of the statutes would seem to indicate that a mortgagee must resort to the courts in order to enforce any of his rights under the mortgage (m), or in the alternative, in the case of Saskatchewan and Alberta, take proceedings in the land titles office, but it is said to be common practice in Saskatchewan and Alberta for the mortgagee to distrain under a license to distrain or under an attornment clause, to take possession and even to make leases (n).

In Manitoba the statute provides as follows (o):

116. In addition to and concurrently with the rights and powers conferred on a first mortgagee, every present and future first

(j) Alta. form S; N.W.T. form U; Sask. form T.

(k) See Sec. Sec. 93, 98, supra.

(l) See Thorn, The Canadian Torrens System, pp. 282 ff.

(m) See Sask. ss. 107 ff; Alta. ss. 62 and 62a; N.W.T. s. 99, referred to in chapter 24, Action for Foreclosure or Sale, Sec. 246.

(n) Thorn, op. cit., pp. 294-296.

(o) Man. s. 116. The meaning of the section has been considered in Commercial Bank v. Breen, 1889, 15 V.L.R. 572; 1 Hunter's mortgagee for the time being of land under this Act, shall, until a discharge from the whole of the money secured or until a transfer upon a sale or order for foreclosure (as the case may be) shall have been registered, have the same rights and remedies at law and in equity (p) as he would have had or been entitled to if the legal estate in the land or term mortgaged had been actually vested in him with a right in the owner of the land of quiet enjoyment of the mortgaged land until default in the payment of the principal and interest money secured or some part thereof respectively, or until a breach in the performance or observance of some covenant expressed in the mortgage or to be implied therein by the provisions of this Act. Nothing contained in this section shall affect or prejudice the rights or liabilities of any such mortgagee after an order for foreclosure shall have been entered in the register or shall, until the entry of such order, render a first mortgagee of land leased under this Act liable to or for payment of the rent reserved by the lease or for the performance or observance of the covenants expressed or to be implied therein.

Torrens Title Cases 407; Farrington v. Smith, 1894, 20 V.L.R. 90; Williams v. Box, 1910, 19 M.R. 560, at p. 588, 44 Can. S.C.R. 1; Smith v. National Trust Co., 1912, 45 Can. S.C.R. 618, 1 D.L.R. 698; Thorn, op. tit., pp. 299 ff.

(p) The section was first enacted in 1900. In 1906 the following words were added after the word "equity"; "including the right to sell or foreclose through any competent court." In 1911 the words added in 1906 were struck out.