(i) This section is quoted in full in chapter 10, Sec. 99.

(j) R.S.M. 1902, c. 148, s. 126.

Under the statute as amended in 1906 it was held that the court had jurisdiction in Manitoba to open up foreclosure proceedings taken in the land titles office, notwithstanding the issue of a certificate of title, in the same manner and upon the same grounds as in the case of mortgages under the old system, at all events where the rights of a purchaser in good faith and for value had not intervened (k). The amendments of 1906 were, however, repealed in 1911, and in accordance with the principle that a mortgagee under the land titles system has only such rights and remedies as the statute expressly or impliedly gives him (l), the correct view would seem to be that a mortgagee under the new system in Manitoba has no right to resort to the court for foreclosure or sale but is confined to his statutory remedies by way of sale or foreclosure in the land titles office (m).

The Land Titles Acts in force in Saskatchewan, Alberta and the Northwest Territories differ from the Real Property Act of Manitoba in that the former all contain provisions expressly conferring jurisdiction upon the courts to entertain actions for foreclosure or sale, but in other respects the statutes of Saskatchewan and Alberta present many points of similarity with the Manitoba statute as regards the remedies of the mortgagee by proceedings in the land titles office.

(k) Williams v. Box, 1910, 44 Can. S.C.R. 1, reversing 19 M.R. 560.

(l) Cf. Smith v. National Trust Co., 1912, 45 Can. S.C.R. 618, at p. 644, 1 D.L.R. 698, at p. 714. See also the passages quoted in chapter 10, Sec. 99, supra.

(m) See the judgments in the Court of Appeal for Manitoba in Williams v. Box, supra; cf. Thorn, The Canadian Torrens System, pp. 310 ff., 345; Scott, Torrens Title Mortgages, pp. 101-4; Re Alarie and Frechette, 1913, 23 M.R. 628, 14 D.L.R. 298.

The land titles system was introduced in the Northwest Territories (including the present provinces of Saskatchewan and Alberta) by a dominion statute of 1886 (n). Under this statute a mortgagee had a power of sale which might be exercised without the supervision or direction of the registrar or a judge, and after abortive sale foreclosure might be obtained on application to a judge.

By the Land Titles Act, 1894, a new principle was introduced. A power of sale was, as before, conferred upon the mortgagee, but the proceedings were made subject to the supervision of a judge. A sale could be made only upon the direction of a judge and subject to the conditions which he might impose, and a transfer to the purchaser could be registered only after confirmation of the sale by a judge. Foreclosure could be obtained after an abortive sale upon application to a judge.

In 1898 the existing statutory provisions for sale and for foreclosure were repealed and s. 75 of the statute of 1894 was replaced by the following new section, which was still in force when the provinces of Saskatchewan and Alberta were in 1905 separated from the Northwest Territories (o):

75. Proceedings to enforce payment of moneys secured by mortgage or encumbrance, or to enforce the observance of the covenants, agreements, stipulations or conditions contained in any mortgage or encumbrance, or for the sale of the lands mortgaged or encumbered, or to foreclose the estate, interest or claim of any person in or upon the land mortgaged or encumbered, as also proceedings to redeem or discharge any land from any such mortgage or encumbrance, shall be had and taken in the Supreme Court of the Northwest Territories, under the practice and procedure of the said court.

(n) As to the history of the subsequent legislation, see Re Sun Life Assurance Co. and Widmer, 1916, 26 D.L.R. 147; Douglas v. Mutual Life Assurance Co., 1918, 13 A.L.R. 18, 38 D.L.R. 459, 39 D.L.R. 601, reversed by the Supreme Court of Canada, 8 Oct. 1918, sub nom. Mutual Life Assurance Co. v. Douglas; Thorn, The Canadian Torrens System, pp. 306, 312, 317, and appendix H; Scott, Torrens Title Mortgages, pp. 67 ff.

(o) The provision in question was continued in the Land Titles Act enacted in 1906 in each of the new provinces.

Under the present Land Titles Act of the Territories the corresponding section provides that the proceedings "shall be had and taken in the Northwest Territories before a stipendiary magistrate and in the Yukon Territory in the Territorial Court" (p), and there is no provision in the statute for foreclosure or sale proceedings in the land titles office or under the supervision of the registrar.

In Saskatchewan, however, in the legislative session of 1908-9 new sections were enacted, substantially similar to the sections which were repealed in 1898, providing for sale and foreclosure, such proceedings, however, to be subject to the supervision and direction of the registrar instead of a judge. The section directing that proceedings to enforce payment, etc., and for sale or foreclosure, should be had and taken in court was also amended by substituting the word "may" for the word "shall," and it is now provided by the Land Titles Act, 1917, s. 107, as follows (q):

107. Proceedings to enforce payment of moneys secured by mortgage or encumbrance, or to enforce the observance of the covenants, agreements, stipulations or conditions contained in a mortgage or encumbrance, or for sale of the lands mortgaged or encumbered or to foreclose any estate, interest or claim in or upon the lands mortgaged or encumbered or to redeem or discharge land from a mortgage, may be had and taken in the Supreme Court of Saskatchewan.

A mortgagee may therefore take proceedings for sale or foreclose either in the supreme court according to the practice and procedure of that court or in the land titles office under supervision of the registrar (r).

(p) R.S.C. 1906, c. 110, s. 99. (q) 1917 (2nd sess.) c. 118.

In Alberta until 1914 no change was made in the statute as regards foreclosure or sale proceedings, and such proceedings continued to be governed by the general provision by which a mortgagee was obliged to have recourse to the court for these remedies. The Foreclosure or .Sale Act of 1914 authorized proceedings to be taken before a master in chambers, but in 1915 this statute was replaced by new provisions of the Land Titles Act authorizing proceedings for sale and foreclosure to be taken in the land titles office under the supervision of the registrar (s).

The Alberta statute, s. 62, contains a provision similar to s. 107 of the Saskatchewan statute (t), with the following additional clauses:

Provided, however, that where proceedings in respect of any mortgage or encumbrance have already been or hereafter shall have been commenced under the provisions of the next following section (u), no proceedings under this section for the enforcement of the covenant for payment shall be commenced or if commenced shall be continued until the remedies provided by the next following section are exhausted (v).

(2) Where any action or proceeding has before the date of the passing of this subsection been taken or shall thereafter be taken in any court either under the provisions of this section or to enforce the observance of the covenants, agreements, stipulations or conditions contained in any agreement for the sale of any land, and personal judgment has been or shall be obtained therein, no execution shall issue thereon until sale of the land mortgaged or encumbered or agreed to be sold has been had or foreclosure ordered and levy shall then be made only for the amount of the judgment or mortgage debt remaining unsatisfied with costs (w), and no execution shall issue and no proceedings shell be had or taken in respect of any execution already issued on any personal judgment obtained either before or after the passing of this subsection, under the covenants, agreements or conditions contained in any mortgage, encumbrance or agreement for the sale of land or any foreign judgment obtained in respect thereof whether the land described in such mortgage, encumbrance or agreement for sale has its situs within the Province of Alberta or elsewhere, until sale of the land mortgaged or encumbered or agreed to be sold has been had or foreclosure ordered in some competent jurisdiction and levy shall then be made only for the amount of the judgment or mortgage debt remaining unsatisfied with costs (x).

(r) Wasson v. Harker, 1912, 5 S.L.R. 364, 8 D.L.R. 88.

(s) The substantially similar provisions of the Manitoba, Saskatchewan and Alberta statutes are discussed in Sec. Sec. 247, 248, infra.

(t) The word "may" (as in the Saskatchewan statute) having been substituted for the word "shall" by 1915, c. 3, s. 1.

(u) I.e. s. 62a, hereinafter referred to.

(v) Added by 1916, c. 3, s. 15.

Inasmuch as a mortgage under the land titles system does not convey the legal estate, but merely creates a charge on the mortgaged land (y), and the effect of foreclosure in equity is simply to deprive the mortgagor of his equitable right to redeem and thus free the mortgagee's legal estate from the equitable claim (z), the word "foreclosure" is not entirely appropriate to proceedings under the land titles system. In the case of foreclosure by proceedings in the registrar's office it is expressly provided in the Manitoba, Saskatchewan and Alberta statutes that an order for foreclosure under the hand of the registrar shall have the effect of vesting the land in the mortgagee free from all right or equity of redemption (a), but in the case of foreclosure by order of a court in Saskatchewan, Alberta or the Northwest Territories, the mortgagee should see that there is inserted in the order a clause either vesting the land in the mortgagee (b) or directing the mortgagor to transfer the land to the mortgagee (c).

(w) Added by 1916, c. 3, s. 15. See Lineham v. McNeill, 1916, 10 A.L.R. 272, 31 D.L.R. 768; Werthe v. Davie, 1916, 11 A.L.R. 46, 32 D.L.R. 384.

(x) Added by 1917, c. 3, s. 40.

(y) See chapter 10, The Land Titles Acts, Sec. 93.

(z) See chapter 3, Legal Mortgage in Equity, Sec. 22.

(a) See Sec. 248, infra.

(b) Colonial Investment and Loan Co. v. King, 1902, 5 N.W.T. L.R. 371.

(c) Such a clause is necessary in the case of the foreclosure of any equitable mortgage if it is desired to vest the legal estate in the mortgagee. See Sec. 244, supra.

A foreclosure under the Land Titles Acts will not be reopened after the registration of a transfer to a purchaser in good faith from the mortgagee (d). It has also been held that where property has been sold under the statutory power of sale to a purchaser in good faith it is too late for the mortgagor to apply for leave to redeem even though the purchaser has made default in strict compliance with the agreement for sale (e).