The Law of Mortgages of Real Estate Including Mortgages Under the Land Titles S
The Law of Mortgages of Real Estate Including Mortgages Under the Land Titles S
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(e) See review of earlier cases in Ross v. Scott, 1875, 21 Gr. 391, affirmed 22 Gr. 29; cf. Dissenting judgment of Strong J. In Bar- ton v. McMillan, 1892, 20 Can S. C. R. 404, at p. 412.
(/) In re Duke of Marlborough, Davis v. Whitehead, [1894] 2 Ch. 133; Rochefoucault v. Boustead, [1897] 1 Ch. 196, at pp. 206, 207. See also a learned and elaborate article by C. B. Labatt in 29 27. DISGUISED FORMS OF MORTGAGE. 53 If a mortgage is expressed in the form of an absolute con- veyance, the mortgagor...'s right to redeem cannot be asserted as against a purchaser in good faith without notice from the mortgagee (g). The mortgagee has no power of sale, unless indeed a statutory power of sale can be imported into the deed; nor can the mortgagee foreclose; he holds the land as trustee, and his only remedy, in the absence of the concur- rence of the mortgagor, is to have a sale through the court (7i) .
The doctrine that a transfer absolute in form may be shown to be in reality a mortgage applies to a transfer and a certificate of title under the land titles system (i), but it has been held in Manitoba that where land is transferred and a certificate of title is issued and it is proved that the trans- action is intended to be by way of security merely, the effect is the same as if the transferee had, not a statutory charge or mortgage under the new system of land titles, but a bare mort- gage under the old system of registration without redemise clause, covenants or provisoes (j).
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To quickly assess the difficulty of the text, read a short excerpt:
(e) See review of earlier cases in Ross v. Scott, 1875, 21 Gr. 391, affirmed 22 Gr. 29; cf. Dissenting judgment of Strong J. In Bar- ton v. McMillan, 1892, 20 Can S. C. R. 404, at p. 412.
(/) In re Duke of Marlborough, Davis v. Whitehead, [1894] 2 Ch. 133; Rochefoucault v. Boustead, [1897] 1 Ch. 196, at pp. 206, 207. See also a learned and elaborate article by C. B. Labatt in 29 27. DISGUISED FORMS OF MORTGAGE. 53 If a mortgage is expressed in the form of an absolute con- veyance, the mortgagor...'s right to redeem cannot be asserted as against a purchaser in good faith without notice from the mortgagee (g). The mortgagee has no power of sale, unless indeed a statutory power of sale can be imported into the deed; nor can the mortgagee foreclose; he holds the land as trustee, and his only remedy, in the absence of the concur- rence of the mortgagor, is to have a sale through the court (7i) .
The doctrine that a transfer absolute in form may be shown to be in reality a mortgage applies to a transfer and a certificate of title under the land titles system (i), but it has been held in Manitoba that where land is transferred and a certificate of title is issued and it is proved that the trans- action is intended to be by way of security merely, the effect is the same as if the transferee had, not a statutory charge or mortgage under the new system of land titles, but a bare mort- gage under the old system of registration without redemise clause, covenants or provisoes (j).
What to read after The Law of Mortgages of Real Estate Including Mortgages Under the Land Titles S?
You can find similar books in the "Read Also" column, or choose other free books by John Delatre Falconbridge to read onlineMoreLess
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