Sect. 15.

Assignment of mortgage debt.

Exclusion

by contract.

Power for

mortgagor

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

Before this Act it was held that a mortgagor had no right to require the mortgagee to assign the mortgage debt when he was paid off; all that could be demanded was the reconveyance of the mortgaged estate. Dav. Conv. ii. Part 2, 280; Dunstan v. Patterson, 2 Phil. 345.

This section rescinds the above rule, except in a case of a mortgagee being or having been in possession (see subsect. 2). It also apparently has the effect of overruling the decision in Colyer v. Colyer, 3 De G. J. & S. 676, and the decision in James v. Biou, 3 Swanst. 241, where it was held by Lord ELDON that "no mortgagee can be compelled to place another person in his stead as mortgagee."

It is to be observed that the operation of this section cannot be excluded by any contract or stipulation to the contrary (sub-sect. 3).

16.-(1.) A mortgagor, as long as his right to inspect to redeem subsists, shall, by virtue of this Act, title deeds. 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 Sect. 16. to the contrary.

tion of

title deeds..

Hitherto the general rule was that a mortgagee could Producnot be compelled to produce the title deeds until he was paid off: Sparke v. Montriou, 1 Y. & C. 103; but in Yates v. Plumb, 2 Sm. & Giff. 174, it was held that where a mortgagee was ordered to reconvey part of a mortgaged estate to the mortgagor he was compelled to produce the deeds relating to the whole estate which he retained. Prid. Conv. 8th Edit. vol. i. p. 198.

This section virtually overrules the decision of Sparke v. Montriou, supra, and provides that a mortgagor as long as his right to redeem subsists, notwithstanding any stipulation to the contrary, shall be entitled on payment of the mortgagee's costs to inspect and make copies of the documents of title in his custody.

With the expression "in the custody or power of the mortgagee" compare the expression "not in the vendor's possession" in sect. 3, sub-sect. 6, and the expression "possession or control" with reference to documents in sect. 9, sub-sects. 2 and 9.

The power of inspecting the title deeds in the custody of Restricthe mortgagee is by this section restricted to the mort- tion on gagor, and does not compel the mortgagee to produce them production to third parties.

of title deeds.

consolida

17.-(1.) A mortgagor seeking to redeem Restricany one mortgage, shall, by virtue of this Act, be tion on entitled to do so, without paying any money due tion of under any separate mortgage made by him, or by mortgages.. 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.

Sect. 17.

Consolidation of

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

The restriction on consolidation of mortgages in this section does not apply if a contrary intention is expressed mortgages. in the mortgage deeds or one of them (sub-sect. 2), and is applicable where one of the mortgages is made after the commencement of this Act.

The rule respecting consolidation of mortgages originally was that when several distinct estates were mortgaged separately as securities for distinct debts by one mortgagor to one mortgagee, the latter had a right to hold all the estates as security for the aggregate of all the debts. Dav. Conv. ii. Part 2, 4th Edit. 289. This doctrine formerly only applied to legal mortgages absolutely conveyed by way of mortgage (Jones v. Smith, 2 Ves. Jun. 376), but is now applicable to legal or equitable securities both in suits for foreclosure as well as redemption (Watts v. Symes, 1 De G. M. & G. 240; Selby v. Pomfret, 1 J. & H. 336; 3 De G. F. & J. 595; Cracknall v. Janson, 11 Ch. D. 1); and is also applicable, notwithstanding that the first security had proved worthless, and that the representatives of the mortgagor were not entitled to redeem the property comprised in the second mortgage except upon payment of, both mortgage debts. Barrow v. Manning, W. N. 1880 p. 108. But in In re Raggett, 16 Ch. 117, it was held that the doctrine did not apply where one of the securities had ceased to exist. In Cummins v. Fletcher, 14 Ch. D. 699, it was held that consolidation only applies where default has been made on all the securities in respect of which it is claimed, and per JAMES, L. J., "there can be no consolidation between a mortgage by A. for his own debt and a mortgage by A. and B. of other property for their partnership debt."

Tendency The tendency of the decisions of the courts of late has of modern been to restrict the doctrine of consolidation, which had decisions. gradually been extended beyond its original limits. In Mills v. Jennings, 13 Ch. D. 639, on App. 28 W. R. 549, it

was held (reversing the case of Tassell v. Smith, 2 De G. & J. Note to Sect. 17. 713) that the doctrine did not apply to a case in which one of the mortgages was created subsequently to the assignment of the equity of redemption to the person seeking to redeem; and see Baker v. Gray, 1 Ch. D. 491. And in Chesworth v. Hunt, 5 C. P. D. 266, it was held that the doctrine of consolidation does not enable a bill of sale holder to tack a prior mortgage of other property of the grantor, and claim that the surplus proceeds of the goods, after discharging the sum secured by the bill of sale, shall be applied in satisfaction of the prior mortgage, so as to defeat the right of the execution creditor to such surplus; and see the Bills of Sale Act, 1878 (41 & 42 Vict. c. 31), s. 8.

Leases.

mortgagor

18.-(1.) A mortgagor of land while in pos- Leasing session shall, as against every incumbrancer, powers of have, by virtue of this Act, power to make from and of time to time any such lease of the mortgaged in possesland, or any part thereof, as is in this section sion. described and authorized.

mortgagee

Prior to this Act neither the mortgagor nor the mort- Powers of gagee could make a lease which would be binding on the leasing. other (Keech v. Hall, 1 Dougl. 21; Coote on Mortgages, 4th Edit. 709, 740), unless it seems there is an absolute necessity on the part of the latter to grant a lease (Hungerford v. Clay, 9 Mod. 1).

This section confers upon a mortgagor or mortgagee in possession a power to make certain leases of the mortgaged land, and it is to be observed that this statutory power of leasing is applicable to all mortgages made after the commencement of the Act unless a contrary intention is expressed in the mortgage deed (see sub-sect. 13). The section should therefore be expressly excepted if it is deemed advisable to exclude the power.

As to the meaning of "incumbrancer," see sect. 2 (vii.).

as is in

Note to If the lease of the mortgaged land is not made " S.18,ss.1. this section described and authorized," it would seem that the Act would not apply.

Applica tion of Act.

(2.) A mortgagee of land while in possession shall, as against all prior incumbrancers, if any, and as against the mortgagor, have, by virtue of this Act, power to make from time to time any such lease as aforesaid.

are

(3.) The leases which this section authorizes

(i.) An agricultural or occupation lease for any term not exceeding twenty-one years; and

(ii.) A building lease for any term not exceeding ninety-nine years.

(4.) Every person making a lease under this section may execute and do all assurances and things necessary or proper in that behalf.

(5.) Every such lease shall be made to take effect in possession not later than twelve months after its date.

(6.) Every such lease shall reserve the best rent that can reasonably be obtained, regard being had to the circumstances of the case, but without any fine being taken.

(7.) Every such lease shall contain a covenant by the lessee for payment of the rent, and a condition of re-entry on the rent not being paid within a time therein specified, not exceeding thirty days.