At common law a mortgage created in favour of the mortgagee an estate upon condition, and the mortgagor's interest in the land was liable to forfeiture on default in strict performance (a). In equity, however, it was held that the mortgagor had an equitable right to redeem after his contractual or legal right was forfeited (b). Until the mortgagee's right legal estate without an express power of sale, although there might be an equitable interest outstanding in the mortgagor. Nesbitt v. Rice, 1864, 14 U.C.C.P. 409.

(a) See chapter 2, Mortgage at Common Law. (b) See chapter 3, Legal Mortgage in Equity. The mortgagee's estate having become absolute at law he could of course convey the to a judicial sale was introduced by statute, usually the only way in which the mortgagee could put an end to the mortgagor 's equitable right to redeem or equity of redemption was by a suit for foreclosure (c).

The necessity thus imposed upon the mortgagee of foreclosing the equity of redemption-a tedious process where there were several subsequent encumbrances and therefore successive periods of redemption-led to the introduction by conveyancers of the power of sale, a remedy intended to afford a simpler and more expeditious mode of getting rid of the mortgagor's equity of redemption and of realizing the mortgage debt.

Courts of equity, however, did not view powers of sale with favour, but regarded them as opposed to the equitable doctrine that the mortgagor had an equity of redemption which could not be got rid of without a decree of foreclosure. Thus in a case in 1738 (d) the mortgagor was let in to redeem several years after the exercise of the power, and in 1801 Lord Kenyon, C.J. said:

"In mortgage deeds there is sometimes introduced a clause that the mortgagee may repay himself by sale of the mortgaged premises without the concurrence of the mortgagor; but a court of equity would, I believe, control the exercise of that power." (e)

In 1802 (f), however, the validity of a power of sale was expressly affirmed, and it was held that the mortgagee might exercise such a power, without the concurrence of the mortgagor, though the latter had covenanted with the mortgagee to join in a sale.

(c) See chapter 24, Action for Foreclosure or Sale, Sec. 245.

(d) Croft v. Powel, 1738, Comyns 603.

(e) King v. Parish of Edington, 1801, 1 East 288.

(f) Clay v. Sharpe, 1802, 18 Ves. 346 n., followed in Cordery v. Morgan, 1811, 18 Ves. 344, 18 R.C. 442.

It may now be considered as settled that a power of sale is a usual and proper term of the ordinary mortgage deed. This point has arisen in England in cases in which the question before the court was whether a power to mortgage authorized the making of a mortgage containing a power of sale. Malins, V. C. said (g):

"I am of opinion that a power of sale is a necessary incident to a mortgage, and that when a testator says that a sum of money is to be raised by mortgage he means it to be raised in the way in which money is ordinarily raised by mortgage, and therefore that that the mortgage may contain what mortgages in general do contain, namely, a power of sale. I entirely agree with what the Master of the Rolls said in Cook v. Dawson (h) that a power to mortgage includes a power to give to a mortgagee all such remedies as are proper to be given to him, so as to mortgage the estate on the best terms, and one of these remedies is a power of sale."

In a suit by a vendor for specific performance, where the vendor was ordered to execute a deed and the vendee to execute a mortgage, the opinion was expressed that it would be improper to insert a power of sale in the mortgage (i), but in another case (j) a decree was made for specific performance of a contract to execute a mortgage containing a power of sale.

The power of sale has also been recognized by legislation. The Short Forms of Mortgages Act (k) provides a form of power of sale, and by the Mortgages Act (l) an implied power of sale is given to mortgagees in certain circumstances.