The plaintiff's statement of claim alleged that the mortgage dated February 17, 1874, was made by Sir Francis Hincks to William Hincks, as trustee and executor, under the will of the Rev. Professor William Hincks, deceased: that William Hincks died intestate subsequent to the making of the mortgage: that the plaintiff had been appointed to represent the estate of the Rev. Professor William Hincks: that the defendants had become the owners of the lands, and that the mortgage was in arrear and claimed the amount due.

The defendants, by their statements of defence, alleged that Sir Francis Hincks was a co-trustee and co-executor, with William Hincks, under the will of the Rev. William Hincks, and as such was entitled after the decease of William Hincks, who predeceased him to the moneys secured by said mortgage and to discharge the same: that the said Sir Francis Hincks sold the lands covered by said mortgage to the defendant John Moran, and discharged said mortgage as the sole executor of the Rev. William Hincks and each defendant as to the respective portions of the lands owned by them, claimed compensation for for improvements under mistake of title.

The action was tried at the sittings at Toronto, on November 4, 1886, before Boyd, C.

At the trial the mortgage was produced, and it was proved that it had never been out of the custody of the solicitor for William Hincks, and that said solicitor had no knowledge whatever of the alleged discharge until after the death of Sir Francis Hincks, which happened in August, of 1885, as the interest was paid by the mortgagor up to April 1, 1885.

J. C. Hamilton and Allan Cassels, for the plaintiff. The certificate of discharge* mentions a mortgage to Rev. Professor Hincks, but the mortgage was made to William Hincks. Sir Francis Hincks was not acting as executor of his brother, the Rev. Professor Hincks. He gave the

* Set out in judgment.

mortgage as mortgagor and as debtor to that estate. It lay on the purchaser at all events to see that the money which he paid was properly applied. The mortgage was lying in the hands of the solicitor of William Hincks all the time. As to the improvements the statute does not apply to a mortgagee. R. S. O. c. 111, s. 67, speaks of the person entitled by law to receive and to discharge the mortgage. The mortgage debt was never paid, and Moran and those claiming under him bought, subject to the registered mortgage, with full notice and at their own risk. The mortgage is really a mortgage from Sir Francis Hincks to William Hincks, as the words as to executorship, &c., are surplusage, and merely words of description. See also R. S. O. c. 107, s. 7.

Bain, Q. C., contra. The discharge of mortgage is valid: Bacon v. Shier, 16 Gr. 485. Even if it is not valid, the payment of $3,000 made is a payment on the mortgage to that extent. The effect of the deed by Sir Francis Hincks, if he was entitled to the mortgage by survivorship, was to pass the whole estate, whether the discharge was valid or not. He held the legal estate as trustee, and equity of redemption as owner: that gave him all, and he sold and got paid the full value of the lands. see Lewin on Trusts, 6th ed., 230, discharge on the registry. As to the three acres owned by Kelly, they were not owned by Sir Francis at the time he made the mortgage; although he included them, they did not become his property until subsequently. The Court order appointing plaintiff, shews he claims under Sir Francis as "survivor."

As to survivorship, There is a sufficient

Hamilton, in reply. If Sir Francis had power as survivor, he would have the like power as one executor during the life of the other. The mortgage cannot be broken up in parts as to Kelly's three acres. The priority given by registration cannot be displaced, as it would practically be by declaring the value of the improvements a first charge on the lands. If the defendants have any right to relief as to improvements, it can only be to redeem

the plaintiff on paying the value of the lands without the improvements, which value can be readily ascertained, and the priority of the plaintiff, and provisions of the Registry Act will thus not be affected. See also McLennan v. McLean, 27 Gr. 54.

November 24, 1886. BOYD, C.-There is no case in the books governing this. Bacon v. Shier, 16 Gr. 485, is widely distinguishable. Tha case grew out of transactions first reported in McPhadden v. Bacon, 13 Gr. 591. John Shier had executed a mortgage to one Pangman, who afterwards died, leaving a will and naming as his executors the said Shier and one Bacon. Bacon did not interfere in the management of the estate, but allowed his co-executor Shier to take the active part of the duties. Shier, the executor, being in possession of his own mortgage, then arranged for an exchange of the land mortgaged for other less valuable land, and received as owelty of exchange some $1,400. He then signed a statutory certificate of satisfaction of the mortgage moneys, which was registered as a discharge of his mortgage. The payment was allowed as a valid reduction pro tanto of the sum secured by the mortgage, and was treated as a proper payment, for two reasons (1) Because the mortgagee by appointing the mortgagor executor had empowered him to receive all moneys due to the estate, and the party paying had the right to believe that the money would be faithfully applied to the purposes of the estate, and (2) Because Bacon being asked before the payment if he was satisfied that the money should go to his co-executor, assented to this being done, saying that Shier was the acting executor.

In the present case, Sir Francis Hincks and William Hincks were executors of the Rev. Professor Hincks, and the mortgage in question was made to secure a loan of about $5,000 made out of the assets of the testator by the one executor William to the other, Sir Francis. By the directions of the will, the property of the testator was to be converted as soon as possible, and to be in

vested so as to produce a regular income, which was to be paid to his two daughters equally during their lives, and the whole to the survivor for her life. Then after the decease of both the corpus was to be divided equally between the testator's four grand daughters. The testator died in September, 1871, and this mortgage was made by Sir Francis on the 17th January, 1874. It purports to be "between Sir Francis Hincks, K. C. M. G., C. B., of the city of Montreal, in the Province of Quebes, (hereinafter called the mortgagor), one of the executors of the late Rev. William Hincks of the first part, and William Hincks of the city of Washington, in the district of Columbia, U. S., Esquire, (hereinafter called the mortgagee) one of the executors of the said late Rev. William Hincks of the other part," and is in other respects in the statutory form. It was duly registered, and the principal sum was payable on the 1st of February, 1877, with interest quarterly at eight per cent. Interest was paid on this mortgage by the mortgagor down to 1st April, 1885, but no principal. In July, 1879, the executor and mortgagee, William Hincks, died intestate, leaving him surviving two sisters who were the daughters of the Rev. Professor Hincks, and the life tenants under his will. In August, 1885, Sir Francis Hincks died, having first, however, assumed to dispose of the mortgaged land, divested of the mortgage, to the defendants, who claim now to hold it as registered purchasers for value against the plaintiff who has been appointed to represent the estate of the Rev. Professor Hincks and the parties beneficially interested under his will.

The question is, Can the defendants hold free from the mortgage?

They claim to do so under a certificate of discharge, signed on the 10th April, 1884, by Sir Francis Hincks as "sole surviving executor of the late Rev. William Hincks."

It was registered on the 15th April, 1884, and reads as follows:

4-VOL. XIII. O.R.

DOMINION OF CANADA.

PROVINCE OF ONTARIO.

To Wit:

To the Registrar of the county of Renfrew:

I, Sir Francis Hincks, of the city of Montreal, in the Province of Quebec, sole surviving executor of the late Reverend William Hincks (deceased), do certify, that he has satisfied all money due on or to grow due on a certain mortgage made by Sir Francis Hincks, of Montreal, in the Province of Quebec, to the late Reverend William Hincks, deceased, which mortgage bears date the twentieth day of February, A.D. 1874, and was registered in the Registry Office for the county of Renfrew, on the twenty-fourth day of February, A.D. 1874, at minutes past ten o'clock, forenoon, in Liber C. for the township of Horton, as No. 791. That such mortgage has not been assigned, and that I am the person entitled by law to receive the money, and that such mortgage is therefore discharged.

Witness my hand this tenth day of April, A. D. 1884. Witness:

(Signed) JAS. WALKER.

(Signed) F. HINCKS, Executor of the late Rev. Wm. Hincks, deceased.

It is to be noted that this certificate misdescribes the mortgage as if it had been taken by the testator, Rev. Prof. Hincks.

On the 10th April, 1884, Sir Francis Hincks executed a deed of the land to the defendant Moran, which was registered on the 15th for $3,500: of this $1,500 was paid down, and the rest, secured by mortgage, was soon after also paid. Moran afterwards sold to Shaw and was paid the price $2,200.

In my opinion the mortgage has not been discharged nor the estate reconveyed to Sir Francis Hincks by what has been done. It is only by introducing the doctrine of survivorship as between joint executors or trustees that even a plausible argument can be advanced to support the title of the defendants. But though these two were in one sense joint executors and trustees as to the assets generally of their testator, that was not their character with respect to this mortgage transaction. There, one was mortgagor and the other was mortgagee, and the mortgage does not on its face shew any right of survivorship. It is drawn up as such an instrument might be between