(4) Before the foreclosure proceedings mentioned in this section shall apply, the land affected must be under The Real Property Act. In addition to the parties heretofore entitled to make an application to bring land under the operation of The Real Property Act, such application may in the discretion of the district registrar be made by the mortgagee or encumbrancee, or his transferee or his assign.

The Saskatchewan statute, s. 114, provides:

114.- (1) Upon receipt of the application mentioned in section 112, the registrar may, if he considers it proper, cause notice to be published once in each of three consecutive weeks in one or more specified newspapers and in two consecutive issues of The Saskatchewan Gazette, offering such land for private sale.

(2) The registrar shall appoint a time not less than one month from the date of the first of such advertisements, or in case there is no advertisement not less than one month from the date of such application, when he may issue to the applicant an order of foreclosure, unless in the interval a sufficient amount of money has been obtained from the sale or paid by or on behalf of the owner, mortgagor or encumbrancer, or other person as aforesaid to satisfy the principal and interest and other moneys secured and all expenses occasioned by such sale and proceedings.

(3) Every such order of foreclosure under the hand of the registrar shall, when entered in the register, have the effect of vesting in the mortgagee or encumbrancee or his transferee the land mentioned therein free from all right and equity of redemption on the part of the owner, mortgagor or encumbrancer or any person claiming through or under him subsequently to the mortgage or encumbrance; and such mortgagee, encumbrancee or transferee shall, upon such entry being made, be deemed a transferee of the land and become the owner thereof and be entitled to receive a certificate of title for the same.

The Manitoba statute (b) is to the same effect, except that the order may issue "after the expiration of the time appointed under section 122, and after the time for sale mentioned in such advertisement, if there be such advertisement."

The Alberta statute (c) has a provision to the same effect as sub-s. 3 of the Saskatchewan statute, but in place of sub-ss. 1 and 2, it provides:

On an application for foreclosure the registrar may issue to such applicant an order nisi in which he may direct that the applicant cause the land to be advertised for private sale; and directing that a final order may be made unless within the time provided for in such order nisi, which shall not be less than one month from the date thereof, a sufficient amount of money has been paid by or on behalf of the owner, mortgagor, or encumbrancer, to satisfy the principal, interest and costs of the proceedings or a sufficient amount of money has been realized from the sale of such land to satisfy the reserve bid;

Provided that the registrar may confirm a sale at any time before the final order of foreclosure has been granted and may appove of any sale at an amount less than the reserve bid.

The Saskatchewan statute, s. 115, provides:

115.- (1) In case default is made in the payment of money due under a mortgage or in the observance of a covenant contained therein, and under the terms of the mortgage by reason of such default the payment of other portions of the principal money is accelerated (d) and such portions become presently due and payable, the mortgagor may, not withstanding any provision to the contrary and at any time before sale, or before the grant of a final order of foreclosure, perform such covenant or pay such arrears as are in default, with costs to be taxed by the registrar, and the mortgagor shall thereupon be relieved from immediate payment of so much of the money secured by the mortgage as may not have become payable by lapse of time.

(b) Man. s. 123.

(c) Alta. s. 62a, sub-ss. 15, 16, as enacted by 1915, c. 3, s. 2, and amended by 1917, c. 3, s. 40.

(d) As to acceleration clauses, see chapter 23, Action on the Covenant, Sec. 226.

(2) The provisions of this section shall apply to all mortgages whenever made.

It has been held that this provision is part of the general law of mortgages and is applicable to foreclosure by the court as well as to foreclosure before the registrar (e).

The Manitoba statute (f) is to the same effect, except that it has the words, "the whole principal and interest secured thereby shall have become due and payable" instead of the words "the payment of other portions of the principal money is accelerated and such portions become presently due and payable." It has been held that the provision is applicable to a mortgage under the "old system" (g).

The Alberta statute contains the following additional provisions (h):

(18) A judge of the Supreme Court or a master in chambers may, from time to time, upon such terms as he shall think fit, on summary application by any person interested, which application may be made either in person or by attorney or solicitor, on notice to the mortgagee or encumbrancee by order stay any proceedings hereunder, and may upon such terms as he shall think fit on summary application made as aforesaid and on notice to the mortgagor or encumbrancer cancel such stay.

(19) Notices or copies thereof, which by this section are required to be served upon an execution creditor shall be sufficiently served if left with the solicitor of record in the suit upon which the execution is issued and any such notices or copies which are required to be served on caveators or mechanics' lien holders shall be sufficiently served if left with some person at the address for service mentioned in the caveat or mechanics' lien.

(20) For the purposes of this action in all proceedings instituted by any mortgagee or encumbrancee resident without the province there shall be endorsed upon the notice of default the name and address of some person within the Province of Alberta, upon whom service may be made on behalf of the person instituting such proceedings.

(e) Wasson v. Harker, 1912, 5 S.L.R. 364, 8 D.L.R. 88. (f) Man. s. 126.

(g) National Trust Co. v. Campbell, 1908, 17 M.R. 587. (h) Sub-s. 18 of s. 62a, as enacted by 1916, c. 3, s. 15; sub-ss. 19 and 20 of s. 62a, as enacted by 1917, c. 3, s. 40.

Until recently there was authority in favour of the view that foreclosure under the Land Titles Act has the effect of extinguishing the right to enforce the covenant for payment, but it has been held by the Supreme Court of Canada (i), reversing the Supreme Court of Alberta (j), that the taking and registration of an order for foreclosure does not extinguish the mortgage debt so as to disentitle the mortgagee from proceeding on the covenant to pay or from realizing on collateral security. It was previously held that a mortgagee who obtains a vesting order after an abortive sale was entitled to have a clause inserted in the order preserving his remedy on the covenant (k). In British Columbia, however, it has been held that a mortgagee who causes himself to be registered as owner of an indefeasible fee under a decree for foreclosure absolute thereby elects to take the land in satisfaction of his debt (l).

It has been held in Saskatchewan that foreclosure does not prevent the mortgagee from proceeding to realize the mortgage debt under the direction for payment contained in the order nisi provided he remains in a position to reconvey the mortgaged property, but that the effect of his so proceeding is to re-open the foreclosure (m), and in Manitoba a similar opinion has been expressed (n).

(i) Mutual Life Assurance Co. v. Douglas, 8 Oct. 1918.

(j) Douglas v. Mutual Life Assurance Co., 1918, 13 A.L.R. 18, 38 D.L.R. 459, 39 D.L.R. 601, following Fink v. Robertson, 1907, 4 Commonwealth L.R. 864, and distinguishing Williams v. Box, 1910, 44 Can. S.C.R. 1.

(k) Bernard v. Faulkner, 1914, 7 A.L.R. 439, 18 D.L.R. 174.

(l) Scottish Temperance Life Assurance Co. v. District Registrar of Titles, 1917, 24 B.C.R. 232, 36 D.L.R. 152.

(m) Orser v. Colonial Investment and Loan Co., 1917, 10 S.L.R. 349, 37 D.L.R. 47.

(n) Noble v. Campbell, 1911, 21 M.R. 597.