Where a person having an estate upon condition continues to hold after the condition is broken, he is, until the remainderman enters, a tenant at sufferance (w), but if he is in possession by agreement with the owner so long as it pleases both parties, he is a tenant at will (x). This distinction in terms has been applied to the case of a mortgagor who remains in possession notwithstanding that the right to possession is not reserved to him by the mortgage, and that the mortgagee by virtue of the conveyance of the land to him is therefore entitled to take possession at any time after the making of the mortgage. If the mortgagor so remains in possession without the consent express or implied of the mortgagee he is said to be a tenant at sufferance, but if the mortgagor remains in possession with the consent express or implied of the mortgagee he is said to be a tenant at will. In the latter case he is not, however, properly tenant at will of the mortgagee, for he is not to pay rent, and he is merely like a tenant at will (y). The analogy is misleading and it is perhaps more correct to say that the mortgagor remains at the will of the mortgagee or that the mortgagee is entitled at any moment to treat him as a trespasser (z). He is not a tenant at will of the mortgagee within the meaning of the statute of limitations (a). Furthermore the utility of the distinction in terminology is not obvious as the mortgagor who remains in possession with the consent of the mortgagee and is called a tenant at will appears to be in no different position from the mortgagor who remains in possession without the consent of the mortgagee and who is called a tenant at sufferance so far as the termination of his possession is concerned. The mortgagee may, without previous demand of possession, bring an action for possession against the so-called tenant at will (b).

(u) Pugh v. Heath, 1882, 7 App. Cas. 235, at p. 238, 16 R.C. 376, at p. 391. See chapter 26, Limitation of Actions, Sec. 274.

(v) Re Mitchell and Fraser, 1917, 40 O.L.R. 389, 38 D.L.R. 597; In re Reeve, 1867, 4 O.P.R. 27; Chalmers v. Freedman, 1909, 18 M. R. 523. .

(w) Allen v. Hill, 1591, Cro. Eliz. 238, 25 R.C. 1. A tenancy by sufferance is when a person, who has originally come into possession by a lawful title, holds such possession after his title is determined. Williams, Real Property, 21st ed., p. 500.

(x) Richardson v. Langridge, 1811, 4 Taunt. 128, 25 R.C. 3.

In a case where, notwithstanding the omission of any redemise clause, it sufficiently appeared from the provisions of the mortgage and the rules and regulations of the mortgagee company that it was the intention of the parties that the mortgagor should remain in possession until default, it was held that until default the mortgagor's possession should not be disturbed (c). It has, however, been held that where there is no redemise clause but merely a covenant on the mortgagor's part that it should be lawful for the mortgagee to enter after default (d) and a further covenant for further assurance in case of default, the mortgagee is entitled to possession immediately after the execution of the mortgage, there being no implication that the mortgagor shall be entitled to possession in the interval between the execution of the mortgage and default (e).

(y) Moss v. Gallimore, 1779, Doug. 279, at pp. 282-3, 18 R.C. 403, at p. 408; Birch v. Wright, 1786, 1 T.R. 378, at p. 382, 15 R.C. 626, at p. 631. See also the notes in 1 Smith, Leading Cases, 12th ed., pp. 597 ff., to the cases of Keech v. Hall and Moss v. Gallimore.

(z) 21 Halsbury, Laws of England, p. 191, note (c).

(a) See the Limitations Act, R.S.O. 1914, c. 75, s. 6, sub-ss. 7, 8, in chapter 26, Limitation of Actions, Sec. 271.

(b) Cf. 21 Halsbury, Laws of England, p. 159; Doe dem. Roby v. Maisey, 1828, 8 B. & C. 767, at p. 768; Doe dem. Higginbotham v. Barton, 1840, 11 Ad. & E. 307, at p. 314; Lows v. Telford, 1876, 1 App. Cas. 414, at pp. 425, 426; Mann v. English, 1876, 38 U.C.R. 240, at p. 246.