strangers, for the words appended "one of the executors' are descriptive and merely surplusage so far as affecting the devolution of the title and the money upon the death of William Hincks, the mortgagee. The legal operation of this mortgage was to enable William Hincks to hold the estate in his own right as against Sir Francis Hincks, though as regards the beneficiaries William Hincks was only a trustee. This was the character of the transaction throughout, because the mortgage was always held by Mr. Beaty as solicitor for William Hincks, as mortgagee, and after his death as agent for the beneficiaries. It was argued that after the death of William the rightful custody of the mortgage was with Sir Francis as surviving executor of the Rev. Prof. Hincks, but this is clearly not the law Riorden v. Brown, 1 C. P. 199, 203, and no such claim was even made by him during his life.

If then the defendants depart from the strict legal effect of the mortgage and seek to introduce by extraneous evidence the fact that the security really represents assets of the estate of Rev. Prof. Hincks, so as to give Sir Francis the benefit of being entitled to discharge it as surviving executor, they are met by equities and other difficulties which appear to me insuperable.

The Registry Act R. S. O. ch. 111, sec. 67, contemplates the action of two parties: one to pay and the other to receive the mortgage money due the mortgagor or his representative, the other the mortgagee or his representative. Here these two are but one, and that one, as said by VanKoughnet, C., in 13 Gr, 595, "whose duty and interest are in direct conflict." The Act never contemplated such an anomalous condition of affairs that one individual should consummate a bi-lateral engagement in which he was to deal at arm's length with himself. But if such a thing were possible, the substance of the transaction in this case is that a debtor to the estate settles with himself as executor of the estate. In these cases the Court does not weigh the matter to determine what should be done, but says at once that such a transaction cannot stand; that is the

language of Lord Eldon in Cook v. Collingridge, Jac. R. 621, which was lately adopted by the Privy Council in De Cordova v. De Cordova, 4 App. Cas. 702.

The Registry Act does not protect the defendants. They had actual notice by the registered discharge, that Sir Francis Hincks, the surviving executor of the Rev. Prof. Hincks, was attempting to deal with himself as mortgagee, and it was at their peril if they chose to accept such a title without satisfying themselves that there was a real satisfaction and discharge of the mortgage moneys as regards the persons really entitled under the will of the Rev. Prof. Hincks. In this case the registration of the certificate did not exempt the purchaser from seeing to the due application of their moneys. To the extent to which these were properly applied under the will of the testator they are entitled to protection. But it is not suggested that any benefit would result from such an inquiry, and there appears to be no doubt that none of the moneys reached the hands of these beneficiaries.

I expressed my view during the argument that there is a sufficient case of improvement under mistake of title on the part of the defendants who have filed defences to justify a reference on this head.

I see no ground to except the three acres from the operation of this judgment. Whenever the title to these was acquired by the mortgagor it would enure to the benefit of the mortgagee, under the holding in Edinburgh Life Assurance Co. v. Allen, 23 Gr. 230. And there is no evidence that the mortgagor was not the person entitled to the land, though having no formal conveyance, when he made the mortgage which, by its terms, covered these three

acres.

The general costs of action should go to the plaintiff. As to the improvements the defendants should set a value on them, which if not accepted by the plaintiff, there will be a reference to determine what should be paid, in which case the costs of the inquiry will follow the result.

G. A. B.

[CHANCERY DIVISION. ]

MUTTLEBURY V. STEVENS.

Mortgage-Foreclosure-Rate of interest for time given for redemption.

In proceedings to foreclose a mortgage on which the principal money had become due by default being made in the payment of interest, although the time for which the mortgage was made had not arrived.

Held, that the rate of interest for the six months allowed to redeem should be computed at the same rate as the mortgage provided for, which in this case seemed a reasonable rate.

THIS was an action of foreclosure brought on a mortgage made in pursuance of the Act respecting Short Forms of Mortgages, on which some instalments of interest and principal were in arrear, although most of the principal money was not due except by reason of the provision that the principal money should become due and payable whenever default was made in the payment of the interest. The rate of interest provided for by the mortgage was seven per cent., but on the settlement of the amount due the Registrar, following the late decision of Powell v. Peck, 6 C. L. T. 530, 12 O. R. 492, calculated interest only at the rate of six per cent. for the six months allowed to the defendant, within which he had the right to redeem.

From this ruling the plaintiff appealed to the Court, and the question was argued on November 24th, 1886, before Boyd, C.

F. E. Hodgins for the plaintiff. The time is not yet expired for which the defendant contracted to pay seven per cent. interest, although the principal money has become due by reason of his default in the payment of the interest. By R. S. O. ch. 104, sec. 16 of Schedule B, the defendant is relieved from the consequences of the non-payment of so much of the mortgage money as is not due by lapse of time upon payment within such time as the practice of equity provides; so that if he is only charged six per cent., instead of the seven per cent. he contracted to pay, for the

six months allowed him by the Court, he could take advantage of his own default. [BOYD, C.-It is a matter in the discretion of the Court that if the Court gives the mortgagor an indulgence in the shape of six months' time, within which he may redeem, that it should be on the condition that he pay the rate of interest he stipulated to pay.] Yes, the same as if he was bringing an action for redemption, when he should pay the stipulated rate. Re Roberts, Goodchap v. Roberts, 14 Ch. D. 49, does not decide a case of an action for redemption, but a case of an action on a covenant. I refer to Elton v. Curteis, 19 Ch. D. 49; Popple v. Sylvester, 22 Ch. D. 98. The security of the mortgage as a security is not merged in the judgment: Ex p. Fewings, 25 Ch. D. 338.

November 30, 1886. BOYD, C.-The mortgage stipulates that interest shall be at the rate of 7 per cent. half yearly, upon such balance of the said mortgage as may remain unpaid at the time when the interest becomes payable respectively." The last of the payments of principal to fall due on 15th October, 1893.

The plaintiff seeks to foreclose on account of failure to pay some of the first instalments of interest, and has a judgment giving the defendant six months to redeem on payment of the whole sum.

The clause accelerating payment of the whole in default. of payment of interest is by the statute, p. 999, R. S. O. ch. 104, thus to be extended: i. e., that the principal shall become due and payable to all intents and purposes whatsoever, and with like consequences and effects as if the time mentioned for payment of principal money had fully come and expired; but that in such case the mortgagor, within such time as by the practice of equity, relief could be obtained on payment of all arrears with lawful costs and charges be relieved fro n the consequences of the non-payment of so much of the money as may not then have become payable by reason of lapse of time.

The Registrar has computed interest at 6 per cent. instead of 7 per cent. for the period allowed for redemption, and the plaintiff applies to rectify this. The officer of the Court followed what was laid down in Powell v. Peck, 6 C. L. T. 531, 12 O. R. 492, in a mortgage case where the account was continued after the maturity of the mortgage.

The effect of the cases is to shew that the contract to pay interest at 7 per cent. only extends up to the day fixed for payment in the mortgage upon such words as are used here, though interest as damages may be recovered after that period, for the rate mentioned in the mortgage up to time of final judgment: Re European C. R. W. Co., 4 Ch. D. 37, 38; St. John v. Rykert, 10 S. C. R. 278; Ex parte Furber, 17 Ch. D. 191. These are cases, however, in which the right to recover depended upon the practice of the Court, where the action is upon the covenant, or upon the security viewed in its legal aspect.

There is here no express covenant to pay interest during the continuance of the security, "so long as the security should continue," as in King v. Greenhill, 6 M. & Gr. 59, or "so long as the principal sum should remain due on the security of the mortgage," as in Popple v. Sylvester, 22 Ch. D. 100. This was dealt with as an express covenant to pay interest as long as anything could be recovered out of the security: Ex p. Fewings, 25 Ch. D. 349. I am not now concerned with the larger question involved in Powell v. Peck, supra, but only as to the rate of interest during the period (usually six months) allowed by the practice of the Court for redemption, which is adverted to in the statute. I may refer to the language used by a very learned and accomplished Equity Judge, Amphlett, J. A., in Gordillo v. Weguelin, 5 Ch. D., at p. 303: Having regard to what is the principle in Equity with regard to the redemption of mortgages, although the day for payment has passed, and there is no provision with the creditor for payment of interest after that day, the Court will assume that interest is payable after the day at the same rate as before. What has to be paid may