by the mortgagee for twenty years, without acknowledgment, a bar to redemption, where the original contract is in terms that the mortgagor may redeem at any time during a period extending beyond the twenty years.

A mortgagee who holds property in pledge is responsible for it in his integrity. Hood v. Easton, 2 Griff. 692.

In a case which was decided under 3 & 4 Will. IV. cap. 27, more than twenty years after a mortgagee had entered into possession, the mortgagor's solicitor wrote to the mortgagee, requesting to know when he could see the mortgagee on the subject of the mortgage. The mortgagee replied by a letter, saying: "I do not see the use of meeting unless some one is ready to pay me off." It was held that the letter was a sufficient acknowledgment in writing to exclude the application of the Statute of Limitations, although not written within twenty years after the mortgagee had entered into possession. Stansfield v. Hobson, 3 De G. M. & G. 620; Darb. & Bos., Stat. Lim. 364.

20. In case there are more mortgagors than one, or more persons than one claiming through the mortgagor or mortgagors, such acknowment, if given to any of such mortgagors or persons, or his or their agent, shall be as effectual as if the same had been given to all such mortgagors or persons. 38 Vic. cap. 16, s. 9.

This is the second clause of 3 & 4 Will. IV. cap. 27, s. 28. Vide Barwick v. Barwick, 21 Grant, 39.

There is a great difference between the 20th section and the 21st. In the 20th an acknowledgment given to any mortgagor, &c., shall be as effectual as if the same had been given to all such mortgagors; but in the 21st section it is laid down that such acknowledgment given by a mortgagee shall only bind the party giving the same.

"There are no savings for disabilites of the mortgagor or his heirs, in regard to the bar created by this section. Where the mortgagor is constructively tenant at will to the mortgagee, the time does not begin to run against the mortgagee

till the tenancy is determined. An acknowledgment by one only of two joint mortgagees is wholly inoperative.' Shelford's Statutes, 216.

Attention is called to Rev. Stats. cap. 66, ss. 35, 36, 37, 38, which embrace the provisions with regard to sales of equity of redemption, and to the cases of Skae v. Chapman, 21 Grant, 534; McEvoy v. Clone, 21 Grant, 515, in which last case the sale by the sheriff of lands of mortgagor, in a suit against the executors of the mortgagor, was held to be valid.-Proudfoot, V. C., dissenting. Vide also, with regard to acquiescence, notes on section 33.

21. In case there are more mortgagees than one, or more persons than one claiming the estate or interest of the mortgagee or mortgagees, such acknowledgment, signed by one or more of such mortgagees or persons, shall be effectual only as against the party or parties signing as aforesaid, and the person or persons claiming any part of the mortgage money or land or rent by, from, or under him, or them, and any person or persons entitled to any estate or estates, interest or interests, to take effect after or in defeasance of his or their estate or estates, interest or interests, and shall not operate to give to the mortgagor or mortgagors a right to redeem the mortgage as against the person or persons entitled to any other undivided or divided part of the money or land or rent; and where such of the mortgagees or persons aforesaid as have given such acknowledgment are entitled to a divided part of the land or rent comprised in the mortgage or some estate or interest therein, and not to any ascertained part of the mortgage money, the mortgagor or mortgagors shall be entitled to redeem the same divided part of the land or rent on payment, with interest, of the part of the mortgage money which bears the same proportion to the whole of the mortgage money as the value of such divided part of the land or rent bears to the value of the whole of the land or rent comprised in the mortgage. 38 Vic. cap. 16, s. 10.

This section is the last part of section 7 of 37 & 38 Vic. cap. 57, Imperial Statutes, and the whole section, which we have divided into three parts, was substituted by the operation of the 9th section of the same Act for the 28th section of the Statute of Limitations of 3 & 4 Will. IV. cap. 27. "No special provision was made by that Statute for the case

of a mortgagee out of possession. A doubt suggested by Mr. Justice Patteson in Doe d. Jones v. Williams, 5 A. & E. 291, as to whether the mortgagee must enter or obtain a written acknowledgment of title to prevent his right being barred, notwithstanding the payment of interest to him by the mortgagor, led to the passing of 7 Will. IV. and 1 Vic. cap. 28." (a)

In our Statute we have incorporated the short provisions of that Statute in section 22, the next following section.

An acknowledgment of a mortgagor's title given by one only of two joint mortgagees, who were, on the face of the mortgage deed, shewn to advance the money on a joint account as trustees, was held wholly inoperative. "The provision in this section as to acknowledgment by some of several mortgagees apply only where they have separate interests either in the money or the land." Per Mellish, L. J., Richardson v. Yonge, L. R. 6 Chy. 478.

If a mortgagee retains possession of the property after being paid in full, the general rule is to charge him with interest and rents in respect of his subsequent receipts; a fortiori is such a charge proper where a mortgagee resists the mortgagor's right to redeem. 15 Chy. 568.

In a redemption suit by the second mortgagee against the first, it appeared that the equity of redemption had become vested in the first mortgagee, and that he had entered into possession and had cut and removed timber to a greater value than the amount due on his mortgage. Held, that he was bound to account for the value of such timber and occupation rent as was taken or received by him as mortgagee, not as owner of the equity of redemption, but that the second mortgagee might ask for a receiver. Steinhoff v. Brown, 11 Chy. 114.

One of several devisees claimed to be solely entitled, and mortgaged the property. The mortgagees entered into the

(a) Charley's Real Property Acts, 47.

receipts of the rents. Held, that they must account to the other devisees for their shares of the rents.

Ontario Bank, 19 Chy. 155.

McIntosh v.

The holder of a mortgage went to reside with his sister, the widow of the mortgagor, upon the mortgaged premises, but asserted no claim or right to possession as mortgagee until some years afterwards, when the widow, being about to marry, desired her brother to leave. The brother was charged with occupation rent from that period, not from the time of his going to reside on the property; and such assertion of right had not the effect of referring back his possession to the time when he first acquired the right, or went to reside on the property. Paul v. Johnson, 12 Chy. 474.

When the plaintiff (a mortgagee) is in occupation of the mortgaged premises, the Master should charge him with occupation rent up to the day appointed for payment; so where it appeared that a mortgagee under such circumstances had been charged with occupation rent up to the date of the Master's report, and had since continued in possession, the final order for foreclosure was refused. Pipe v. Shafer, 1 Chy. Chambers, 251.-Spragge.

Although the rule is, that where a mortgagee enters into possession, he does so for the purpose of recovering both his principal and interest, and the estate is a security only for the money due on the mortgage, and the Court requires him to be diligent in realizing the amount due, in order that he might restore the estate to the mortgagor, who is in equity the party entitled to it; still he will not be held responsible for any greater rent than he has actually received, unless it is clearly established in evidence that he knew a greater rent might and could have been obtained, and that he refused and neglected to obtain the same. Merrian v. Cronk, 31 Chy. 60.

22. Any person entitled to or claiming under a mortgage of land may make an entry or bring an action at law or suit in equity to

recover such land, at any time within ten years next after the last payment of any part of the principal money or interest secured by such mortgage, although more than ten years have elapsed since the time at which the right to make such entry, or bring such action or suit first accrued. 38 Vic. cap. 16, s. 12.

This section is taken from Imperial Statute 1 Vic. cap. 28. There was alarm created among mortgagees, on account of the doubt which arose in Doe d. Jones v. Williams, 5 Ad. & E. 291, whether it was necessary for a mortgagee not taking possession of the property mortgaged, to bring his action within twenty years from the day of default in paying the mortgage money independent of payment of interest or principal. This caused the passage of the present section in England. Deerman v. Wyche, 9 Sim. 570.

"The beneficial saving of this enactment is, it will be seen, confined to land as defined by section 2 of the present Act. The object of this restriction is not clear; rent charges may be and sometimes are the subject of mortgage; and it is hard to point out why mortgages of land (including tithes) should, by receiving interest, retain their right to bring an action to recover such land (or titles), which does not equally hold good in favour of the right of a mortgagee of a rent charge to recover such rent charge by distress. It may, however, be considered pretty clear that receipt of interest on a debt secured by a mortgage of rent charge, will not have the effect of keeping alive the right of the mortgagee to distrain for the rent charge on the land out of which it issues." (a)

For cases decided on the 7 Will. IV. and 1 Vic. cap. 28, see Doe d. Palmer v. Eyre, 17 Q. B. 366; Eyre v. Walsh, 10 Ir. C. L. R. 346; Ford v. Ager, 2 H. & C. 279; Doe d. Baddeley v. Massey, 17 Q. B. 373; Chinney v. Evans, 11 H. L. 115; Wrixon v. Vyse, 2 Dru. & War. 192; Loftus v. Swift, 2 Sch. & L. 642.

(a) Charley's Real Property Acts, 55; Brown on Stat. Limitations, 449 Darby & Bosanquet, 354–5.