(l) Stats. 3 & 4 Will. IV. c, 27, ss. 28, 34; 37 & 38 Vict. c. 57, ss. 7, 9; Kinsmen v. Rouse, 17 Ch. D. 104; Forster v. Patterson, ib. 132.

(m) See stats. 38 & 39 Vict, c. 87, s. 95: 60 & 61 Vict. c. 65, s. 12.

Subsequently to the chargee's entry into possession might he allowed to have a further right of redemption, notwithstanding that the chargee had held possession for twelve years. And in any case the chargee would be saddled with the burden of proof that he is entitled to have the register rectified as he desires; and he would have to pay the costs of his application out of his own pocket. For these reasons it appears that an intending mortgagee of registered land cannot be advised to rest satisfied with a registered charge alone (n). He must in some way obtain such a security as will vest in him the mortgagor's estate; or he may be powerless against tenants under leases prior to the charge in case he be obliged to outer into possession, and he will be at a great disadvantage in the matter of acquiring an absolute title by twelve years' possession.

There are two ways of making such a mortgage; and each of them is much more disadvantageous to the mortgagor than an ordinary mortgage of unregistered land. The first, which is that most favourable to the mortgagee, is for the mortgagee to take a registered transfer of the land offered as security, and to be entered in the register as proprietor of the land, the mortgagor's right of redemption being secured to him by an unregistered deed (o). The mortgagor must, of course, put a caution on the register, so as to be informed of any registered dealing with the land: but the mortgagee cannot safely allow him to enter a restriction on registered dealings therewith without his consent, as this would hamper the exercise of the mortgagee's power of sale. The result is that the mortgagor cannot, without redeeming, effectively control the exercise by the mortgagee of the statutory powers of disposition given to the registered proprietor of land; and the mortgagee may execute registered charges as well as transfers to the prejudice of the equity of redemption. The second manner of mortgaging registered land is for the mortgagee to take a registered charge coupled with an unregistered mortgage of the mortgagor's estate in the land charged (p): but in this case it is necessary, in order to prevent the legal estate so assured to the mortgagee from being impaired (q) or extinguished (r) by a subsequent registered charge on or transfer of the land, that a restriction shall be entered in the register preventing any registered dealings (s) with the land charged without the consent of the mortgagee. And as a further precaution against such dealings, the mortgagee should stipulate for possession of the land certificate (t). It is also suggested, in the mortgagee's interest (u), that a mortgage of this kind should contain a covenant by the mortgagor to transfer the mortgaged land to the mortgagee (subject to redemption) in case the mortgagee shall enter into possession; also a power of attorney from the mortgagor to the mortgagee enabling him to execute such transfer to himself in the mortgagor's name. These precautions will sufficiently secure all the mortgagee's remedies, so long as no transfer of the land from the mortgagor to a third person is registered: but if the mortgagor should desire to make such a transfer, the whole process must be gone through again; so that, after the transfer has been registered with the mortgagee's consent (x), and the mortgagee's legal estate extinguished thereby (y), he may take back a new legal estate from the transferee, and obtain a new covenant for transfer to himself in case of his entry into possession and a new power of attorney from the transferee to effect such transfer. And of course the restriction on all registered dealings without the mortgagee's consent must be carefully maintained. Registered charges subsequent to the first do not appear to deprive the first mortgagee of the legal estate assured to him by unregistered disposition (z): but if the suggestion made above be adopted, he should not allow them to be registered without procuring the chargee to enter into the covenant and give the power of attorney above mentioned (a); and he must further stipulate for the entry of a restriction on any transfer of the charge without his consent, in order that he may be enabled to procure the like covenant and power of attorney from any registered transferee of the charge. And he must be careful to maintain a restriction on any dealing with the land, or any subsequent charge thereon, being registered without his consent. These transactions, of course, entail increased expense, which falls on the mortgagor.

Mortgage of registered land by-transfer.

(n) An exception may be made where the proposed loan is so much below the value of the land that it is practically impossible that the amount secured would not be realised by a forced sale. It is thought that trustees proposing to invest trust money on mortgage of registered land could not be advised to rest satisfied with a registered charge alone, where they intend to advance the full amount of that proportion of the value which trustees are generally authorized to lend on mortgage of unregistered land; see stat. 56 & 57 Vict. c. 53, s. 8 (1); Blyth v. Fladgate, 1891, 1 Ch. 337, 353, 354; Re Turner, 1897, 1 Ch. 536.

(o) See Davidson's Concise Precedents, 294 & n., 18th ed.; 2 Key & Elph. Prec. Conv. 917, 920, 8th ed.; Encyclopaedia of Forms, viii. 523 & n. It is thought that, in fairness to the mortgagor, the unregistered deed should be executed in duplicate; so that he may retain some evidence in his possession of his right of redemption.

Mortgage by registered charge coupled with an unregistered mortgage of the estate.

(p) See 2 Key & Elph. Prec. Conv. 920, 923, 8th ed.; Encyclopaedia of Forms, viii. 523, n.. 526. The mortgagee cannot safely dispense with a registered charge; as he must he enabled, in the event of his exercising his power of sale, to execute a transfer, capable of registration, to the purchaser; see stat. 60 & 61 Vict. e. 65, s. 16 (2); above, pp. 1061, 1119. A mortgagee intending to take a security of this kind must be careful to obtain an abstract of all unregistered dispositions of the land, and to make the same searches as if the land were not registered; see above, pp. 432 - 434. 511 sq., 1073, 1109. In the case of a mortgage of registered leasehold land, the unregistered mortgage will be by underlease.