Provision was made by the English statute of 1833, 3 & 4 W. 4, c. 27, s. 34, for the extinguishment of the right and title of the person who failed to make an entry or bring an action within the statutory period. The corresponding provision in Ontario is now contained in R.S.O. 1914, c. 75, s. 16, as follows:

16. At the determination of the period limited by this Act to any person for making an entry or distress, or bringing any action, the right and title of such person to the land or rent, for the recovery whereof such entry, distress, or action respectively might have been made or brought within such period shall be extinguished.

If no action is brought within the period limited by the act the right itself as well as the remedy is extinguished. The effect of the section is to vest the lands in the mortgagor in the same manner as if a reconveyance had been executed (c). The statute differs in this respect from the statute of James whereby the remedy only is barred (d).

A mortgagee who has suffered the statute to run before he asserts his right of entry cannot, by afterwards getting possession of the property, revive his title to it, but he is in as a mere trespasser. The insolvency of the mortgagor and the appointment of an assignee in insolvency does not suspend the running of the statute so as to preserve the lien and security of the mortgagee on the land mortgaged (e). An acknowledgment given after the statutory period has lapsed is insufficient-to revive the title (f).

(b) See Sec. 270, supra. As to an action for redemption, see Sec. 278.

(c) Doe d. Jukes v. Sumner, 1845, 14 M. & W. 39; Doe d. Carter v. Barnard, 1849, 13 Q.B. 952; Kibble v. Fairthorne, [1895] 1 Ch. 219.

(d) Gray v. Richford, 1878, 2 Can. S.C.R. 431 at p. 454.

The effect of the section was explained by Cozens-Hardy M.R. in the following terms (g):

"... my present view is that the phrase 'statutory conveyance,' and so on, is a loose metaphorical term, and that the true view is this, that whenever you find a person in possession of property that possession is prima facie evidence of ownership in fee, and that prima facie evidence becomes absolute when once you have extinguished the right of every other person to challenge it. That is the effect of s. 34 of the Real Property Limitation Act, and that explains how the person who has been in possession for more than the statutory period does get an absolute legal estate in the fee, and there is nobody who can challenge the presumption which his possession of the property gives."

When the money due upon a mortgage has been paid to the mortgagee but no reconveyance has been executed, the mortgagor becomes from the date of such payment a tenant at will to the mortgagee and the legal estate of the mortgagee is extinguished by the adverse possession of the mortgagor for one year in addition to the statutory period (h).

A mortgagor's interest in the proceeds of sale of land held on trust for sale is an interest in "land" as defined by the Real Property Limitation Acts, and therefore after the lapse of the statutory period, in the absence of any payment or acknowledgment, the mortgagee's title is extinguished (i).

(e) Court v. Walsh, 1882, 1 O.R. 167, affirmed 9 O.A.R. 294; Doe d. Dunlop v. McNab, 1859, 5 U.C.R. 289.

(f) See Sec. 272, supra.

(g) In re Atkinson and Horsell's Contract, [1912] 2 Ch. 1, at p. 9.

(h) Sands v. Thompson, 1883, 22 Ch.D. 614. See R.S.O. 1914, c. 75, s. 6, sub-s. 7, in Sec. 271, supra.

D. Actions for Redemption. Sec. 277. Limitation if mortgagee in possession.

The English Real Property Limitation Act of 1833, 3 & 4 W. 4, c. 27, contained a provision (s. 28) limiting the time within which an action for redemption might be brought against a mortgagee in possession of the mortgaged land. This provision was superseded by s. 7 of the statute of 1874, 37 & 38 V. c. 57, by which the limitation period was reduced from twenty to twelve years (j). The corresponding provision in Ontario is contained in R-S.O. 1914, c. 75, s. 20, as follows:

20. Where a mortgagee has obtained the possession or receipt of the profits of any land or the receipt of any rent comprised in his mortgage the mortgagor, or any person claiming through him, shall not bring any action to redeem the mortgage, but within ten years next after the time at which the mortgagee obtained such possession or receipt, unless in the meantime an acknowledgment in writing of the title of the mortgagor, or of his right to redemption, has been given to the mortgagor or to some person claiming his estate, or to the agent of such mortgagor or person, signed by the mortgagee, or the person claiming through him, and in such case no such action shall be brought, but within ten years next after the time at which such acknowledgment, or the last of such acknowledgments, if more than one, was given.

The opinion has been expressed that the general rule that time begins to run from the taking of possession is subject to an exception if the mortgagee takes possession before the mortgage is due. Fisher on Mortgages (k), citing Brown v. Cole (I), says, "Time will not run in the case of a common mortgage until the day of redemption has arrived; for the mortgagor cannot redeem before that day" (m). The proposition just quoted must, however, be accepted with caution. The decision in Brown v. Cole was to the effect that a mortgagor is not entitled to redeem before the expiration of the time limited for payment of the mortgage debt (n). The deduction that the statute will commence to run only from the same date appears to be based upon the assumption that the statutory bar can commence to run only from the time when the right arose, whereas the statute provides for the commencement from the time when the mortgagee obtained possession

(i) In re Fox, Brooks v. Marston, [1913] 2 Ch. 75, following In re Hazeldine's Trusts, [1908] 1 Ch. 34, and Kirkland v. Peatfleld, [1903] 1 K.B. 756.

(j) As to the Real Property Limitation Acts of 1833 and 1874, see Sec. 269, supra. As to the law prior to 1833, see Sec. 268, supra.

(k) 6th ed., s. 1404.

(I) 1845, 14 Sim. 427, 18 R.C. 116.

If actual possession is once obtained by a mortgagee in assertion of his legal right of entry, it need not be maintained continuously for the statutory period (p), but possession obtained by the mortgagee after the lapse of the statutory period does not cause his title to revive (q).

In the case of a Welsh mortgage time does not begin to run against the mortgagor until the mortgage is satisfied (r).

It has been held that the time will run against a person entitled to the equity of redemption in remainder, although the mortgagee enters into possession and the statutory period elapses in the lifetime of the tenant for life (s).

A prior mortgagee in possession acquires a title against both the mortgagor and subsequent mortgagees who are out of possession (t).

(m) See also Wilson v. Walton, and Kirkdale Permanent Building Society, 1903, 19 Times L.R. 408.

(n) See chapter 25, Action for Redemption, Sec. 252.

(o) In re Metropolis and Counties Permanent Investment Building Society, Gatfield's Case, [1911] 1 Ch. 698, at pp. 706-7.

(p) Kay v. Wilson, 1877, 2 O.A.R. 133.

(q) Court v. Walsh, 1882, 1 O.R. 167, 9 O.A.R. 294.

(r) See chapter 1, Introductory, Sec. 2.

(s) Harrison v. Hollins, 1812, 1 S. & St. 471.