It has been held that if a person advances money to the owner of an equity of redemption for the purpose of paying off an existing mortgage, and pays off the mortgage and registers a discharge of it, in ignorance of an execution against lands placed in the sheriff's hands after the registration of the discharged mortgage, the subsequent mortgagee is entitled on the ground of mistake to be subrogated to the rights of the original mortgagee so as to give him priority over the execution creditor to the amount advanced to pay off the original mortgage (s). The same principle was applied in a case where a purchaser made a search in the registry office and found only two mortgages against the land and on the following day paid off the mortgages and registered the discharges of them together with the conveyance to himself. In the interval between the search and the registration a lien was registered against the land, and it was held that the purchaser was entitled to be subrogated to the rights of the mortgagees whom he had paid off in priority to the lien (t).

(q) LeNeve v. LeNeve, 1747, Amb. 436, 2 W. & T. 187, 21 R.C. 774; Agra Bank v. Barry, 1874, L.R. 7 H.L. 135, 21 R.C. 784; cf. In re Monolithic Building Co., Tacon v. The Company, [1915] 1 Ch. 643.

(r) For a discussion of the Middlesex, Yorkshire and Irish statutes, see the notes to LeNeve v. LeNeve, supra, in 2 W. & T. L.C. Eq. at pp. 243 ff.; 21 Halsbury, Laws of England, 334 ff.; Williams, Real Property, 21st ed., pp. 211 ff., 572 ff. As to the construction of provisions purporting to give priority to a person claiming under a registered title nothwithstanding that he takes with notice actual or constructive, see chapter-10, The Land Titles Acts, Sec. 97.

The subsequent mortgagee or purchaser may, however, estop himself by his conduct from asserting the right of subrogation (u). In any event the right does not arise unless the payments made on the prior encumbrance or lien are made upon an agreement or with the intention that the person paying is to have a first charge upon the land as security for repayment, and the right is a mere equitable claim which cannot be asserted against a person who takes under a subsequent registered instrument without notice (v).

(s) Brown v. McLean, 1889, 18 O.R. 533. It is there pointed out that in ordinary circumstances the registration of the discharge would have operated as a conveyance of the mortgagee's estate to the person next entitled to it, that is, to the execution creditor, but the subsequent mortgagee was held entitled to relief on the ground of mistake. It is to be noted that it is provided by the Registry Act, R.S.O. 1914, c. 124, s. 64 (2) that the registration of the discharge shall not affect the right, if any, of the subsequent mortgagee who has paid off the discharged mortgage to be subrogated to the rights of the mortgagee whose mortgage debt has been so paid. See chapter 19, Discharge or Reconveyance, Sec. Sec. 183, 184. Cf. chapter 21, Merger, Sec. 201, as to the presumption of merger in the case of a stranger paying off a .mortgage.

(t) Abell v. Morrison, 1890, 19 O.R. 669.

(u)McLeod v. Wodland, 1893, 25 O.R. 118.

(v) McMillan v. McMillan, 1894, 21 O.A.R. 343, 23 O.R. 351; Imperial Loan and Investment Co. v. O'Sullivan, 1879, 8 O.P.R. 162; Watson v. Dowser, 1881, 28 Gr. 478. A mortgagor or owner of the equity of redemption who redeems a prior charge which is his own debt, or which by contract express or implied he is bound to dispostponed to the claim of a mortgagee without notice (y), even though the work or service is performed or the materials are supplied before the making of the mortgage (z).