LEASES. Forfeiture.

S. 14 (2), (3). brought by himself, apply to the Court for relief; and the Court may grant or refuse relief, as the Court, having regard to the proceedings and conduct of the parties under the foregoing provisions of this section, and to all the other circumstances, thinks fit; and in case of relief may grant it on such terms, if any, as to costs, expenses, damages, compensation, penalty, or otherwise, including the granting of an injunction to restrain any like breach in the future, as the Court, in the circumstances of each case, thinks fit.

What relief against forfeiture existed before this Act.

How damages are to be ascertained.

Before this Act no relief could have been obtained against forfeiture for breach of covenant in a lease, containing the usual proviso for reentry on breach of covenant, except in the case of a covenant for payment of rent or insuring against fire (Hill v. Barclay, 18 Ves. 56; Bracebridge v. Buckley, 2 Price, 200; Nokes v. Gibbon, 3 Drew, 681); or except in cases of accident or surprise (Hill v. Barclay, 18 Ves. 62); or under special circumstances enabling a Court of Equity to grant relief (Bamford v. Creasby, 3 Giff. 675; Bargent v. Thomson, 4 Giff. 473; Hughes v. Metrop. R. C., 2 App. Cas. 439). Under 22 & 23 Vict. c. 35, ss. 4-9, Courts of Equity had power to grant relief in certain cases of forfeiture for omission to insure against fire. That power was extended to Courts of Common Law by the Common Law Procedure Act, 1860 (23 & 24 Vict. c. 126), s. 2. These enactments are repealed by this Act (see subs. (7) of this section); but by subs. (8) the relief against forfeiture for non-payment of rent, which extends to an underlessee (Doe v. Byron, 1 Com. B. 623), is left untouched (as to this relief at common law see the C. L. P. Act, 1852, 15 & 16 Vict. c. 76, s. 212, and the C. L. P. Act of 1860, 23 & 24 Vict. c. 126, s. 1). Subs. 2 will impose on the judges the difficult duty of deciding the terms on which relief is to be granted. It would have been well if the Act could have given some guide for estimating the penalty to be imposed on the lessee. Where there has been a breach of a covenant to insure, but no loss, it is difficult to say what is a proper sum to be paid to the landlord. Before the Act the landlord would have recovered the whole value of the lease, so that the penalty may be said to range from a farthing to that full value. The probability is that where no loss has been incurred no damages will be awarded, and the only penalty will be costs.

(3.) For the purposes of this section a lease includes an original or derivative under-lease, also a grant at a fee-farm rent, or securing a rent by condition; and a lessee includes an original or derivative under-lessee, and

the heirs, executors, administrators, and assigns of a lessee, also a grantee under such a grant as aforesaid, his heirs and assigns; and a lessor includes an original or derivative under-lessor, and the heirs, executors, administrators, and assigns of a lessor, also a grantor as aforesaid, and his heirs and assigns.

(4.) This section applies, although the proviso or stipulation under which the right of re-entry or forfeiture accrues is inserted in the lease in pursuance of the directions of any Act of Parliament.

(5.) For the purposes of this section a lease limited to continue as long only as the lessee abstains from committing a breach of covenant shall be and take effect as a lease to continue for any longer term for which it could subsist, but determinable by a proviso for re-entry on such a breach.

(6.) This section does not extend

(i.) To a covenant or condition against the assigning, under-letting, parting with the possession, or disposing of the land leased; or to a condition for forfeiture on the bankruptcy (b) of the lessee, or on the taking in execution of the lessee's interest; or

(ii.) In case of a mining lease (c), to a covenant or condition for allowing the lessor to have access to or inspect books, accounts, records, weighing machines or other things, or to enter or inspect the mine or the workings thereof.

(7.) The enactments described in Part I. of the Second Schedule to this Act are hereby repealed.

The repeal by this subs. of s. 8 of 22 & 23 Vict. c. 35, does away with the special relief given in respect of insurance to a purchaser of a leasehold, and places him in the same position as his vendor in respect to relief generally against forfeiture. The Court would scarcely enforce a forfeiture against a purchaser without notice, or award damages or enforce a penalty against him, and he thus appears practically in as good a position in respect to insurance as under the repealed Act. The case of Ex parte Gorely, 4 De G. J. & S. 477, rendered s. 7 of the same Act no longer necessary.

(8.) This section shall not affect the law relating to

S. 14 (9);
S. 15.

LEASES.
Forfeiture.

Forfeiture, &c., for non-payment of rent.

MORTGAGES.

Powers of mortgagor conferred by this Act.

Mortgagor in possession.

Powers of mortgagee.

Mortgagee in possession.

re-entry or forfeiture or relief in case of non-payment of rent (d).

(9.) This section applies to leases made either before or after the commencement of this Act; and shall have effect notwithstanding any stipulation to the contrary.

(b) As to the meaning of "Bankruptcy," see s. 2 (xv.)
(c) As to the meaning of "mining lease," see s. 2 (xi.)

(d) As to forfeiture and relief against forfeiture for non-payment of rent, see Woodfall L. & T. 291-298, 11th ed.

The following is a summary of the powers conferred on mortgagors and mortgagees by this Act and made incident to their estates, unless a contrary intention is expressed, except as to the first two powers, (i.) and (ii.), which apply notwithstanding any stipulation to the contrary. A mortgagor

(i.) May require the mortgagee, not being or not having been in possession, to transfer instead of reconveying, and to assign the debt: C. A. s. 15;

(ii.) May inspect and take copies of title deeds: s. 16; (iii.) May redeem one mortgage without redeeming any other: s. 17; (iv.) May have an order for sale in a redemption action: s. 25; (v.) May when in possession make or agree to make agricultural or occupation leases not exceeding twenty-one years, and building leases not exceeding ninety-nine years: s. 18 (1) (17). (i.) and (iv.) are retrospective, (ii.) is not; (iii.) applies where the mortgages, or one of them, are or is made after 1881; (v.) is not retrospective, except by agreement.

A mortgagee under a deed made after 1881

(vi.) May when the mortgage money has become due sell or concur in selling: ss. 19 (1), 20, 21;

(vii.) May insure: ss. 19 (ii.), 23;

(viii.) May appoint and remove a receiver: ss. 19 (iii.), 24;

(ix.) May give receipts for purchase and other moneys and securi

ties: s. 22;

(x.) May after his power of sale has become exercisable recover the title-deeds, except against persons having prior claims: s. 21 (7);

(xi.) May, whether the mortgage is before or after 1881, obtain an order for sale in action for foreclosure or redemption: s. 25 (2);

(xii.) May when in possession exercise the like powers of leasing or agreeing to lease as a mortgagor in possession: see (v.) supra ; s. 18 (2), (17);

(xiii.) May cut and sell timber: s. 19 (iv.).

(xi.) is retrospective, (vi.) to (x.), and (xiii.) are not; (xii.) is not retrospective except by agreement.

S. 15 (1), (2), (3).

MORTGAGES.

(xiv.) On the death of a sole mortgagee dying after 1881 the estate devolves on his personal representatives, notwithstanding any Devolution of devise in his will: s. 30.

15.—(1.) Where a mortgagor is entitled to redeem, he shall, by virtue of this Act, have power to require the mortgagee, instead of re-conveying, and on the terms on which he would be bound to re-convey, to assign the mortgage debt and convey the mortgaged property to any third person, as the mortgagor directs; and the mortgagee shall, by virtue of this Act, be bound to assign and convey accordingly.

mortgage estates on death.

Obligation on transfer

mortgagee to

instead of
re-conveying.

sary.

This section includes an equitable as well as a legal mortgage. When transfer Though a second mortgage, or any other equitable charge, is discharged of an equitable charge necesby mere payment by the owner of the equity of redemption, and no re-conveyance is necessary, yet it is not so discharged if paid by another person, and if so paid, a transfer can be required under this section of an equitable charge as well as of a legal mortgage.

(2.) This section does not apply in the case of a mortgagee being or having been in possession.

The reason for excepting a mortgagee in possession (see Coote, Mortg. 655, 741, 4th ed.), is, that once having taken possession he remains liable for all that he might but for his wilful default have received, and also liable in respect of working minerals and other matters, and remains liable after transfer for the acts and defaults of the transferee. Though the request of the mortgagor to transfer might operate as a release by him, the liability to mesne incumbrancers would still continue. A second or subsequent mortgagee might go into possession and be ousted by a prior mortgagee. Therefore it is necessary to exclude a mortgagee who has been in possession.

(3.) This section applies to mortgages made either before or after the commencement of this Act, and shall have effect notwithstanding any stipulation to the contrary.

In applying this and the following sections it must be remembered

Why mortgagee in possession excepted.

E

SS. 15, 16, 17 (1).

MORTGAGES.

Decisions

cancelled.

How rights

under this s. enforced.

Retrospective effect.

Power for

mortgagor to inspect title deeds.

Cases affected.

Restriction on consolidation

that mortgagor includes any person deriving title under the original mortgagor or entitled to redeem: s. 2 (vi.)

The decisions cancelled by this section are Dunstan v. Patterson, 2 Ph. 345, and others referred to in Fisher, Mortg. 1005 (7), (m), 2nd ed.; and Coote, Mortg. 735 (m), 4th ed.

The mode of enforcing the right given by this section will be (1) by an action to redeem, in which the mortgagee will be directed to transfer instead of reconveying, and on refusal there will be the same remedy as on refusal to reconvey; (2) in case of a sale, by payment of the amount of the incumbrance into Court under s. 5, when on refusal to transfer a vesting order can be made under that section.

The section is retrospective, to which there can be no objection. A mortgagee is not injured by having to transfer on receiving his money. Refusal can only be for the purpose of extorting something more, but for this purpose a mortgagee would scarcely incur the liability of going into possession, so as to protect himself under subs. 2 from transferring.

16.—(1.) A mortgagor, as long as his right to redeem subsists, shall, by virtue of this Act, be entitled from time to time, at reasonable times, on his request, and at his own cost, and on payment of the mortgagee's costs and expenses in this behalf, to inspect and make copies or abstracts of or extracts from the documents of title relating to the mortgaged property in the custody or power of the mortgagee.

(2.) This section applies only to mortgages made after the commencement of this Act, and shall have effect notwithstanding any stipulation to the contrary.

See observations, ante, on s. 5.

As to the decisions rendered by this section inapplicable to mortgages made after 1881, see Fisher, Mortg. 340, 2nd ed.; and Coote, Mortg. 729, 4th ed.

Refusal to produce deeds may impose great hardship on a mortgagor preventing him from obtaining an advance to pay off the mortgage, and leaving him powerless to prevent foreclosure.

17.—(1.) A mortgagor seeking to redeem any one of mortgages. mortgage, shall, by virtue of this Act, be entitled to do so, without paying any money due under any separate mortgage made by him, or by any person through whom he claims, on property other than that comprised in the mortgage which he seeks to redeem.