(c) 1893, 15 O.P.R. 254 at p. 258.

"I may note that I do not decide upon what might be done before judgment obtained upon the covenant. That recovery changes the position of the parties-the mortgage passes into a security of record-transit in rem judicatam-and the amount then due and payable is no longer secured by the mortgage ("by these presents" as expressed in the statute) but by the judgment of the Court. But the scope and meaning of the extension of the acceleration claim as given in the R.S.O. have not been exhaustively considered."

Even in an action for foreclosure where the acceleration depended not on default in payment of interest but on default in building a house within the time stipulated for the court refused to interfere and granted judgment of foreclosure. The defendant gave a mortgage to the plaintiff in which he covenanted to pay the mortgage money in nine equal annual instalments, and also to build a house on the land within one year, and there was a proviso that the mortgage should immediately become due and payment after default being made in building the house within the time mentioned. No default occurred in payment of the mortgage money, but the house was not built until about a month after the expiry of the first year. It was held that the plaintiff was entitled to insist on a forfeiture of the extended terms of payment in consequence of the breach of covenant as to the erection of the house, and to judgment for redemption or foreclosure (d). Relief may be granted against forfeiture for non-payment of rent, and in certain cases for neglect to insure, but no case appears in which relief has been given against such default as that just mentioned (d).

Where a mortgage deed contained an agreement that the payment of the principal money thereby secured 'should not be required by the mortgagees until the expiration of three years from the date of the deed, "if in the meantime every half-yearly payment of interest shall be punctually paid," it was held that payment "punctually" meant payment on the day fixed for payment, and that payment nine days after such fixed day was not good payment (e).

(d) Graham v. Ross, 1883, 6 O.R. 154.

Where a mortgage payable in ten years contained a proviso that if the mortgagor mortgaged or otherwise encumbered the premises or suffered them to become liable to sale for taxes, the mortgage money should become immediately payable, the court held that an assignment in insolvency, though voluntary, was not such an encumbering of the estate as entitled the mortgagee to call for the mortgage money (f).

A mortgage provided for payment of three annual sums of $2500 each, and contained a special provision that out of the last instalment the mortgagor might retain $1000 until he received a conveyance of the interest of an infant who, with the mortgagee, executed an agreement to convey when he became of age. There was also an acceleration clause making the whole amount due on default in paying any part. Default having been made in payment of the first annual instalment, it was held that the mortgagee was entitled to sue for foreclosure, but that the acceleration clause did not apply to the postponed payment of $1000, that the personal judgment should not include this sum, and that the mortgagor would be entitled to a stay of the action on payment of the other portions of the principal together with the accrued interest and the costs (g).

It will be observed that the form of acceleration clause provided by the Short Forms of Mortgages Act applies only to the non-payment of interest. If the principal is payable in instalments a special clause may be added providing for acceleration of the whole principal on default in payment of any instalment. From the mortgagee's point of view it would seem to be better to omit the statutory short form altogether and to insert an appropriate special acceleration clause differently worded in order to avoid the application of the relieving provision already mentioned. Where a mortgage provided that if the mortgagors "make default as to any of the covenants or provisoes herein contained the principal hereby secured shall at the option of the mortgagee . . forthwith become due and payable," and default in payment of taxes took place, it was held that the provision was in effect a qualification of or addition to the statutory clause, and that the extended form in schedule B to the .Short Forms of Mortgages Act, including the relieving clause, was applicable with the same qualification or addition (h).

(e) Leeds and Hanley Theatre of Varieties v. Broadbent, [1898] 1 Ch. 343.

(f) McKay v. McFarlane, 1872, 19 Gr. 345.

(g) Thomson v. Willson, 1915, 51 Can. S.C.R. 307, 23 D.L.R. 468, varying Willson v. Thomson, 1914, 31 O.L.R. 471, 19 D.L.R. 593.

Where the principal has become due by virtue of the mortgage contract, on default in payment of interest, the mortgagee is not bound to sue for the whole accelerated sum. He may if he chooses seek to recover only the amount that has matured. Where, however, a mortgagee takes proceedings to enforce his security he cannot refuse to accept payment of the whole amount of principal and interest, even although part of it has not matured, but if his proceedings are confined to protecting his security he cannot be compelled to accept payment of moneys not yet due, as the right to accelerate payment for default is at the option of the mortgagee (i).

(h) Schwartz v. Williams, 1915, 35 O.L.R. 33, 27 D.L.R. 733. The decision in this case is difficult to reconcile with the cases decided as to what qualifications of or additions to the statutory short form of power of sale are authorized by the statute. See chapter 31, Sale under Power of Sale, Sec. 335.

(i) Ex parte Ellis, [1898] 2 Q.B. 79; Ex parte Wickens, [1898] 1 Q.B. 543; Wickens v. Shuckburgh, 1898, 78 L.T. 213.