S. 14.

LEASES.

committing a breach of covenant shall be and take effect as a lease to continue for any longer term for which Forfeiture. it could subsist, but determinable by a proviso for reentry on such a breach.

Protection of purchaser of leaseholds against forfeiture for noninsurance.

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

(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 (a) of the lessee, or on the taking in execution of the lessee's interest; or

(ii.) In case of a mining lease (b), 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 The enactments described in Part I. of the Second Schedule to this Act are hereby repealed.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a penalty against him, and he thus appears practically in as good a position in respect to insurance as under the repealed Act.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 re-entry or forfeiture or relief in case of non-payment of rent (c).

(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.

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

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

S. 14.

IV. MORTGAGES.

MORTGAGES.

mortgagor conferred by this Act.

The following is a summary of the powers conferred on mortgagors Powers of 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 Mortgagor in or occupation leases not exceeding twenty-one years, and possession. 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

Powers of

(vi.) May when the mortgage money has become due sell or concur mortgagee.

in selling: ss. 19 (i.), 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 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);

(xii.) And cut and sell timber: s. 19 (iv.);

(xiii.) A mortgagee may, whether the mortgage is before or after 1881, obtain an order for sale in an action for foreclosure or redemption: s. 25 (2).

A subsequent mortgagee, as a person entitled to redeem (see s. 2 (vi.)).

(xiv.) May also exercise powers (i.) to (iv.).

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

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

Mortgagee in possession.

Devolution of

mortgage estates on

death.

S. 15.

Obligation on mortgagee to

15.-(1.) Where a mortgagor is entitled to redeem, he MORTGAGES. 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 re-conveying. any third person, as the mortgagor directs; and the mortgagee shall, by virtue of this Act, be bound to assign and convey accordingly.

transfer

instead of

When transfer

of an equitable charge necessary.

Redemption by tenant for life.

Amendment of this s. by C. A., 1882.

C. A., 1882,

s. 12.

Reconveyance

on mortgage.

This section includes an equitable as well as a legal mortgage. Though a second mortgage, or any other equitable charge, is discharged by 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.

A tenant for life who has obtained an order to redeem on terms which prevent interest and further costs running up against the remainderman, will be held to those terms, and cannot under this s. require transfer to a third person: Alderson v. Elgey, 26 Ch. D. 567.

In Teevan v. Smith, 20 Ch. D. 724 (as to which see Marson v. Cox, 14 Ch. D. 140), the actual decision was that the mortgagor could not require a transfer to his nominee as against the second mortgagee who desired to redeem the first. But the Court seemed to think that this section did not in any case enable a mortgagor to require a first mortgagee to transfer where there were intermediate mortgagees, even though they did not ask to redeem. This construction would have rendered the section to a great extent nugatory. The main difficulty arises where there are successive mortgages and the first mortgagee insists on foreclosing or selling unless paid, but refuses to transfer and will only reconvey to the second mortgagee. No advance can then be obtained to pay off the first mortgage, except on terms of paying all. This is now provided for by s. 12 of C. A., 1882, which enacts that

The right of the mortgagor, under section fifteen of the Conveyancing Act of 1881, to require a mortgagee, instead of re-conveying, to assign the mortgage debt and convey the mortgaged property to a third person, shall belong to and be capable of being enforced by each incumbrancer, or by the mortgagor, notwithstanding any intermediate incumbrance; but a requisition of an incumbrancer shall prevail over a requisition of the mortgagor, and, as between incumbrancers, a requisition of a prior incumbrancer shall prevail over a requisition of a subsequent incumbrancer.

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

SS. 15, 16. MORTGAGES.

C. A., s. 15, continued.

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 Why mortgagee in also liable in respect of working minerals and other matters, and possession remains liable after transfer for the acts and defaults of the transferee. excepted. 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 two following sections it must be re- Mortgagor inmembered that mortgagor includes any person deriving title under the cludes second original mortgagor or entitled to redeem: s. 2 (vi.); Teevan v. Smith, mortgagee. 20 Ch. D. 724, 730.

The decisions cancelled by this section are Dunstan v. Patterson, Decisions 2 Ph. 345, and others referred to in Fisher, Mortg. 1005 (1), (m), cancelled. 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.

How rights under this s. enforced.

A Retrospective

money.

The section is retrospective, to which there can be no objection. mortgagee is not injured by having to transfer on receiving his 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.

effect.

16.--(1.) A mortgagor, as long as his right to redeem Power for subsists, shall, by virtue of this Act, be entitled from mortgagor to inspect title time to time, at reasonable times, on his request, and at deeds. 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

SS. 16, 17. MORTGAGES.

Cases affected.

Restriction on consolidation of mortgages.

Cases affected.

Equity of redemption altered.

How consolidation may still arise.

relating to the mortgaged property in the custody or
Power
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, and first n. to s. 15 (3).

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 by 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 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.

(2.) This section applies only if and as far as a contrary intention is not expressed in the mortgage deeds or one of them.

(3.) This section applies only where the mortgages or one of them are or is made after the commencement of this Act.

As to the decisions affected by this section, see Fisher, Mortg. 678 et seq. 2nd ed.; Coote, Mortg. ch. 67, 4th ed.

The words "seeking to redeem " are general, and apply to the case of a mortgagor or subsequent incumbrancer giving notice to pay off as well as to the case of a redemption suit, or of a payment under an order in a foreclosure suit. Thus in the absence of agreement to the contrary, an equity of redemption arises in the mortgagor free from the right to consolidate. He is put in the same position as if he were another mortgagor, consequently the surplus proceeds of a sale (s. 21 (3)) under one security cannot be applied to make good the deficiency of another security.

Under this section consolidation of mortgages can only arise by express contract. It does not in terms repeal any previously existing rule of law, but it confers on the mortgagor a right in opposition to a previously existing rule, and at the same time permits him to waive that right by contract. The result, it is conceived, is to substitute consolidation by contract of the parties in place of consolidation by