The non-production of the deeds is material, not only as it deprives the purchaser of the usual means of verifying the title deduced upon the abstract, but as inducing a suspicion that they may have been deposited by way of equitable mortgage; it has even been held, on a sale of a public-house in London, that their non-production amounted to notice to a mortgagee of such a deposit with, the brewers who supplied the house (h); this decision has been disapproved of (i); and has been thought to depend upon the presumed notoriety of the practice of London publicans so to deposit their deeds, and upon the fact of the mortgagee having been aware that the publican was indebted to the brewers: in fact the Court thought that there was wilful blindness, the security having been taken for the re-payment, not of a cotemporaneous advance, but of a sum already due (j): however, in a very recent case, it was held by Sir L. Shadwell, V. C, that the omission to ask for the deeds was sufficient to postpone a mortgagee who took a conveyance of the legal estate by way of security for a pre-existing debt, although it did not appear that he was aware of the mortgagor being indebted to the prior incumbrancer (k).

Mortgagee consenting to sale by Court must produce deeds.

Case of mortgagee countenancing sale by mortgagor.

Liability of mortgagee for loss or destruction of deeds.

Importance of non-production of deeds.

May affect purchaser with notice of their deposit.

(c) In re Gee, 2 Dowl. & L. 997.

(d) Livesey v. Harding, 1 Beav. 343.

(e) Hornby v. Matcham, 16 Sim. 325.

(f) Lord Midleton v. Eliot, 15 Sim. 531.

(g) Woodman v. Higgins, 14 Jur. 846, V. C. K. B.