The Short Forms of Mortgages Act provides that the parties may introduce into, or annex to any of the short forms any express exceptions therefrom or express qualifications thereof; and the like exceptions and qualifications shall be taken to be made from or in the corresponding extended forms (c), but in order to obtain the benefit of the extended form, care should be taken to avoid any change in the wording of the short form otherwise than by way of express exception or qualification. If the wording used is not in conformity with the short form, it will have effect according to ordinary rules of construction without reference to the extended form (d).

(z) As to the provision with regard to service on the mortgagor at his usual or last place of residence within the province, see Sec. 339; as to the manner of selling and the conduct of the sale, see Sec. 341; as to the conveyance and its effect, see Sec. 343; as to the application of the proceeds of the sale, see Sec. 344.

(a) See Sec. 335, infra.

(b) Se,e Sec. 333, supra.

(c) R.S.O. 1914, c. 117, s. 4 (3). See chapter 35, Short Forms of Mortgages Act, Sec. 381. The short form and the corresponding extended form of power of sale are set out in Sec. 334.

An assignee of a mortgage is not entitled to exercise the power of sale unless it is expressly reserved to him (e). No difficulty arises in this respect if a sale is made under the short form because the corresponding extended form provides that the power may be exercised by the mortgagee, his heirs, executors, administrators or assigns, but to enable the assignee of a mortgage to sell under a special power of sale which is not in conformity with the statute and which operates without reference to the extended form, it is necessary that the power should by its terms be exercisable by the assigns of, or by persons claiming under, the original mortgagee (f).

A power of sale was in the following words: "Provided that the said mortgagee, on default of payment for two months, may without giving any notice, enter on and lease or sell the said lands," and it was held that this was neither an exception from or a qualification of the form provided by the statute, but an abolition of one of its most important terms, that is, that written notice should be given to the mortgagor. The power, therefore, was personal to the mortgagee and could not be exercised by his assigns (g). In a subsequent case, where the power was in the following words: "Provided that the mortgagee on default of payment for one day may, without any notice, enter on and lease or sell said lands," a divisional court was divided in opinion on the question whether the power was operative under the statute (h).

(d) Cf. R.S.O. 1914, c. 117, s. 5, in Sec. 381.

(e) See Sec. 336, infra.

(f) It would of course be sufficient to have a general provision In the mortgage that the word "mortgagee" means the "mortgagee, his heirs, executors, administrators or assigns."

(g) Re Gilchrist and Island, 1886, 11 O.R. 537.

Prior to 1910 (i) the short form was as follows: "Provided that the mortgagee on default of payment for months may on notice enter on and lease or sell the said lands" (j), and it was held that the substitution of the word "month" for the word "months" was not a material alteration, and that the assignee of the mortgage might exercise a power of sale which was expressed to be exercisable on default of payment for one month (k). ,So, it has been held that the insertion of the word "calendar" before the word "month" is not a material alteration (l).

From a subsequent case in the Court of Appeal (m) it appears that a special power of sale may be so worded as to import into it by relation all the provisions of the extended form except as varied by the terms of the special power. The terms of the special power and the decision of the court are sufficiently set out in the following extract from the judgment of Osier, J.A. (n):

"There is first the usual short form clause of power of sale after notice which must be read, in accordance with the Act and clause 3 of the Directions, R.S.O. (1887) ch. 107, Schedule B, Form 14, in the extended form, the substitution of the word 'month' for 'months,' if important, being in my humble judgment an express qualification within the meaning of the Act, of Form 14 in the first column of the schedule. Then follows a separate clause: 'Provided also that in case default be made in payment of either principal or interest for two months after any payment of either falls due, the said power of sale and entry may be acted upon without any notice.' This clause is to be read just as if the previous clause had been set forth in its extended form, since that clause is, as 1 hold, in exact compliance with the Act, and is therefore to be construed as if it had been in the form of words in column 2 of the schedule, the extended form. Reading the second clause as following the extension it declares that in the event it provides for, the said power of sale and entry may be acted upon without notice. All the terms of that power, therefore, except as varied by the terms of the second clause, are brought into that clause by relation, and among those terms is the provision that it may be exercised by the heirs, executors, administrators or assigns of the mortgagee. The next aids this construction by providing that any sale under the power may be varied or rescinded. And also that the said mortgagees, their heirs, executors, administrators and assigns may buy in and resell without being responsible for any loss or deficiency on resale.' The case appears to me distinguishable from Re Gilchrist and Island and Clark v. Harvey (o), where the mortgages did not contain the symbolical form given in column 1 of the schedule, and it therefore became impossible to revert to the exponential form in column 2. It is plain, for the reasons already given, that no such difficulty exists here."

(h) Clark v. Harvey, 1888, 16 O.R. 159. (i) 10 E. 7, c. 55, schedule B. (j) R.S.O. 1897, c. 126, schedule B. (k) Re Green and Artkin, 1887, 14 O.R. 697. (l) Re Cotter, 1903, 14 M.R. 485.

(m) Barry v. Anderson, 1891, 18 O.A.R. 247; cf. Re Cotter, 1903, 14 M.R. 485.

(n) 18 O.A.R. at pp. 248, 249.

By the Mortgage Amendment Act, 1888 (p), there was enacted the provision which was afterwards incorporated in the Act respecting Mortgages of Real Estate, R.S.O. 1897, c. 121, s. 34, as follows (q):

84. No sale made prior to the 23rd day of March, 1888, shall be declared to be invalid on the ground, or by reason only of the same having been made in pursuance of a power of sale contained in a mortgage where such power has been exercised by an assignee of such mortgage instead of the original mortgagee unless within two years after the making of any such sale, proceedings have been taken to declare the same to be invalid or irregular; but nothing in this section contained shall be deemed or construed to confirm any such sale which for any other reason or any other ground might be set aside, or declared irregular or invalid; nor shall anything herein contained affect any proceeding, suit or matter, adjudged or determined before or pending at the said date or brought within three months thereafter.

In 1888 (r) and 1890 (s) there were enacted the provisions which are now contained in s. 27 of the Mortgages Act (t). In the case of a sale made under the short form it is not necessary that the sale should be preceded by an entry, because under the extended form the mortgagee may exercise the power "whether in or out of possession." Opinions have differed whether under a power to enter on or lease or sell the lands which does not operate under the statute, there must be an entry before the sale (u).

(o) Cited supra, (p) 51 V. c. 15, s. 5.

(q) Left unrepealed by 10 E. 7, c. 51, s. 30, but not incorporated in the revised Mortgages Act. (r) 51 V. c. 15, s. 4. (s) 53 V. c. 27, s. 1.