It depends upon the terms of the power of sale whether notice of exercising the power need be given or by whom or to whom, when and in what manner notice need be given (e).

If notice is required to be given, but the length of notice is not specified, it would seem that reasonable notice would be such as to give the mortgagor sufficient time in which to get the money (f).

The intention to sell should be distinctly stated in the notice. Where the notice stated only that unless payment should be made proceedings would be instituted to obtain possession, it was held that the notice was insufficient to support a sale (g).

It is also provided in the Mortgages Act, R.S.O. 1914, c. 112, s. 28, as follows:

28. A notice of exercising a power of sale shall state the amounts claimed to be due for principal, interest and costs respectively.

In the case of a sale under the statutory power of sale implied in certain circumstances under the Mortgages Act, a. specified form of notice is prescribed (h). It is a frequent practice to use this form in other cases, although it is not necessary to do so.

(d) Oland v. McNeil, 1901, 32 Can. S.C.R. 23.

(e) See statutory implied power of sale (Sec. 332); contractual power of sale (Sec. 333); statutory short form of power of sale and qualifications thereof (Sec. 334, 335); who may exercise the power (Sec. 336); when the power may be exercised (Sec. 337); power of sale without notice (Sec. 338).

(f) Cf. Moore v. Shelley, 1883, 8 App. Cas. 285, at p. 293. (g) Bartlett v. Jull, 1880, 28 Gr. 140.

It is not essential that any signature should appear at the foot or end of the notice, but it is essential that the identity of the person giving the notice should appear in the notice (i), and that the notice should be a complete, and not an obviously incomplete document. Where a notice did not show that it was given by or on behalf of the mortgagee and was not signed, it was held invalid (j). A notice given in the name of the mortgagee and signed by his solicitor is sufficient (k).

A notice should be addressed to the person to be served, but the fact that it is not so addressed is not a fatal defect if it is served upon such person (l). The service of notice upon an agent of the mortgagor was held to be effective where the notice was in fact forwarded by the agent to the mortgagor and was received in due time by the latter who made no objection to the notice or the service (m).

The mode of giving notice prescribed by the power of sale should be strictly observed. In a case where the power required that notice should be given to the mortgagor, his heirs, executors or administrators, and notice was served upon the widow and administratrix of the mortgagor, addressed to her as widow, and not upon the heir, a child three years of age, it was held that the notice of sale should have been served upon both the heir and the administratrix, the disjunctive conjunction referring only to the personal representatives and not to them and the heirs (n).

(h) See Sec. 332, supra.

(i) It has been held, however, that an unsigned notice accompanied by a signed letter is sufficient. Lockhart v. Yorkshire Guarantee and Securities Corporation, 1908, 14 B.C.R. 28.

(j) Ansell v. Bradley, 1916, 37 O.L.R. 142, 31 D.L.R. 297.

(k) Fenwick v. Whitwam, 1901, 1 O.L.R. 24.

(l) Ansell v. Bradley, supra; Doe dem Matthewson v. Wright, 1801, 4 Esp. 5.

(m) Fenwick v. Whitwam, supra.

Spragge, C. said (o) :

"I find no case in which it has been held, or in which it has been contended, that where, by the terms of a contract, notice is required to be given, notice will be dispensed with because the person to whom it is to be given is not of capacity to understand it ... It does not follow, from the heir in this case being so young, that the placing of a proper notice in his hands, directed to him as heir-at-law, would necessarily have been an idle form. It might have drawn the attention of the child's mother, who was, I apprehend, his guardian in socage, to his rights, and to her duties in that relation; but whether practically useful or not it was a something without the doing of which the mortgagee had not the power to sell."

The short form of power of sale contained in schedule B to the former Short Forms of Mortgages Act (p) provided for notice to be given to the mortgagor, his heirs or assigns, but the form referred to in the present statute (q) provides for service on the mortgagor, his heirs, executors, administrators or assigns. Under the earlier form of power it was held that if the estate had become vested in the heirs by virtue of the Devolution of Estates Act (r), service upon the personal representatives was not necessary (s), but under the present form of power it would seem advisable if not necessary to serve both the heirs and the personal representatives (t).

(n) Bartlett v. Jull, 1880, 28 Gr. 140.

(o) 28 Gr. at p. 143. In the case of the statutory implied power of sale special provision is made by the Mortgages Act for service upon an infant who succeeds to the title of a mortgagor (see Sec. 332), but this provision has no application to an express power of sale. Re Martin and Merritt, 1901, 3 O.L.R. 284.

(p) R.S.O. 1897, c. 126, superseded by 10 E. 7, c. 51.

(q) R.S.O. 1914, c. 117. See Sec. 334, supra.

(r) See chapter 17, Persons entitled on Death of the Mortgagor, Sec. 162.

(s) Re Martin and Merritt, 1901, 3 O.L.R. 284.

(t) Cf. Bartlett v. Jull, supra.

Clearly, so long as the estate is vested in the personal representatives, service upon them is necessary, as they are deemed ' in law the heirs of the mortgagor (u).

The wife of a mortgagor who has joined in a mortgage to bar her dower is not an "assign" of her husband, and is not, in her husband's lifetime, entitled to notice under a power of sale which requires notice to be served upon the mortgagor or his assigns (v).