It is provided in Ontario by the Land Titles Act, R.S.O. 1914, c. 126, s. 33, as follows:

33. Subject to any entry to the contrary on the register the registered owner of a registered charge, for the purpose of obtaining satisfaction of any money due to him under the charge, at any time

(a) See Sec. 212, supra.

(b) Wheeler v. Montefiore, 1841, 2 Q.B. 133; cf. Heck v. Knapp, 1861, 20 U.C.R. 360.

(c) Delaney v. Canadian Pacific Ry. Co., 1891, 21 O.R. 11; Mann v. English, 1876, 38 U.C.R. 240. As to title by possession in the case of vacant lands, see chapter 26; Limitation of Actions, Sec. 270.

(d) Ocean Accident and Guarantee Corporation v. Ilford Gas Co., [1905] 2 K.B. 493, approving and applying Burnett v. Guildford (Earl), 1855, 11 Ex. 19.

(luring the continuance of his charge, may enter upon the land charged, or any part thereof, or into the receipt of the rents and profits thereof, subject nevertheless to the right of any persons appearing on the register to be prior encumbrancers, and to the liability attached to a mortgagee in possession.

A mortgagee taking possession under this provision is not as a legal mortgagee taking possession of his own fee simple; he has nothing but the statutory right to enter and hold possession, and his interest when he has taken possession seems to be something like the estate of a tenant by elegit, that is, he may hold the land until the debt is satisfied out of the rents and profits (e).

In Manitoba the Real Property Act, in addition to providing that a first mortgagee shall have the same rights and remedies at law and in equity as he would have had if the legal estate had been actually vested in him with a right in the owner of the land of quiet enjoyment until default (f), provides specifically that after default a mortgagee or encum-brancee may enter into possession of the mortgaged land by receiving the rents and profits thereof or may bring action to recover the land either before or after entry or distress and either before or after sale under power of sale in the same manner as if the money had been secured by an assurance of the legal estate (g).

In Saskatchewan it is provided by the Land Titles Act, 1917, as follows (h):

108.- (1) In every case where:

(a) a registered mortgage or encumbrance contains a covenant authorizing the mortgagee or encumbrancee, upon default in payment of the principal, interest, annuity or rent charge or any part thereof thereby secured or in the observance of any covenant expressed or by this Act declared to be implied therein, to enter into possession of the lands and receive and take the rents, issues and profits thereof; (b) such default has been made and has continued for the space of one calendar month or for such longer time as may be expressly limited for the purpose; (c) The mortgagee or encumbrancee has registered notice of his intention so to do, and has served copies of such notice upon the mortgagor or encumbrancer, his executors, administrators or assigns and upon every other person appearing by the records of the land titles office at the date of the registration of the notice to have any mortgage, encumbrance or lien upon an estate, right or interest in or to the lands subsequent to such first named mortgage or encumbrance (i); the mortgagee or encumbrancee may, without the further consent or concurrence of any person interested, enter into possession of the lands and receive and take the rents, issues and profits thereof, and whether in or out of possession may lease the same or any part thereof as he may see fit.

(e) Wiliams, Real Property, 21st ed., p. 675.

(f) R.S.M. 1913, c. 171, s. 116, quoted in chapter 10, The Land Titles Acts, Sec. 99.

(g) R.S.M. 1913, c. 171, s. 114.

(h) Sask. statutes, 1917 (2nd sess.), c. 18, s. 108.

(2) The term covered by a lease or leases made under the preceding [sub.] section shall not extend in all beyond a period of five years.

(3) The mortgagee or encumbrancee may by such notice require the mortgagor or owner or such other interested persons as aforesaid to pay within a time to be specified in the notice the money then due or owing on the mortgage or encumbrance, or to observe the covenants therein expressed or implied, as the case may be, and may notify them that all remedies competent will be enforced unless such default be remedied.

The Manitoba statute (j) contains provisions similar in effect to the section just quoted except that the rights thereby conferred are not made conditional upon there being a covenant in the mortgage in the terms of clause (a), and there is no provision limiting the number of years for which a lease or leases may be made.

(i) The service must be personal unless the registrar otherwise directs. See s. 113 quoted in chapter 24, Action for Foreclosure or Sale, Sec. 246.

(j) R.S.M. 1913, c. 171, s. 118.

In Alberta the Land Titles Act (k) contains provisions similar in effect. Like the Manitoba statute it omits the condition expressed in clause (a) of the Saskatchewan statute and the limitation as to the number of years for which a lease or leases may be made, but it differs from the Manitoba and the Saskatchewan statutes with regard to the contents of the notice to be filed and served. Instead of providing that the mortgagee may notify the mortgagor or other interested parties "that all remedies competent will be enforced unless such default be remedied," it provides that the notice "shall contain a statement that in case default continues for the further space of two calendar months from the date of service of the notice, the mortgaged lands may be sold under the provisions of The Land Titles Act," and "may also declare the intention of the mortgagee or encumbrancee to make an application for foreclosure" in case the sale proves abortive and default is continued for six months after the time for payment (l).

The power to lease the mortgaged land or any part thereof provided for in the statutes above mentioned means doubtless a power to make a lease or leases which will not interfere with the mortgagor's right to redeem-a power analogous to that possessed by a mortgagee in Ontario under a covenant contained in a mortgage made pursuant to the Short Forms of Mortgages Act "that on default the mortgagee shall have quiet possession of the said lands" (m). The power in question is merely one form of the power to enter into possession and to receive and take the rents and profits of the land for the purpose of reducing or paying off the mortgagee's claim.

(k) Sub-ss. 1, 2, 3, 4 & 5 of s. 62a, as enacted by 1915, c. 3, s. 2.

(l) As to sale and foreclosure under the Land Titles Acts, see chapter 24, Action for Foreclosure or Sale, Sec. 246.

(m) See Sec. 214, supra, where the extended form of the covenant is set out. See also chapter 15, Lessee of Mortgaged Land, Sec. 144, where such a power to make leases is distinguished from the power to lease or sell mentioned in the Ontario short form of power of sale.

It would follow that, apart from the express limitation in the Saskatchewan statute as to the number of years for which the mortgagee may make a lease, the term should not be unduly long and possibly must not extend beyond the term of the mortgage (n).

It is clear under the present Saskatchewan statute that the giving of the statutory written notice is a necessary preliminary both to entering into possession and to leasing. It has been suggested that under the Alberta statute, as under the former Saskatchewan statute and the Manitoba statute, a strict construction would lead to the conclusion that the statutory notice is not a condition precedent of the exercise of the power of leasing although it is a condition precedent of entering into possession (o). It is submitted, however, that even if the court did not consider that on a reasonable construction of the statutes the statutory notice was intended to be a condition precedent of the making of leases as well as of the entering into possession, the question is immaterial because the exercise of the power of leasing itself amounts to taking possession, notwithstanding the language of the statutes by which the mortgagee is authorised "whether in or out of possession" to lease the mortgaged lands (p).

Where a mortgagor made default, and the mortgagee entered into possession and leased the land to the mortgagor for one year, the lease being executed by the mortgagor but not by the mortgagee, it has been held in Saskatchewan that the entering into possession and the making of the lease were not inoperative and void as against execution creditors, although no notice was registered or served under the statute, because the mortgagor acquiesced in the taking of possession and leasing and none of the persons to whom notice is required by the statute to be given was affected by what was done and the assistance of the statute was not invoked by the mortgagee (q).

(n) Cf. Scott, Torrens Title Mortgages, p. 53.

(o) Scott, Torrens Title Mortgages, p. 52. The ground of the distinction is that the statutes in question provide that the mortgagee "may forthwith after giving" the notice prescribed enter into possession, etc., and "may make any lease," etc.

(p) See chapter 28, Mortgagee in Possession, Sec. 301, as to the circumstances in which a mortgagee is deemed to be in possession. Scott, op. cit., p. 54, expresses a guarded opinion in the same sense on this point.

It is provided in Manitoba by the Real Property Act, R.S.M. 1913, c. 171, s. 84, that no action of ejectment or other action for the recovery of any land under the new system shall lie against the registered owner for the estate or interest in respect of which he is so registered, except in the case, inter alia, of a mortgagee or encumbrancee as against a mortgagor or encumbrancer in default, and that in such case a mortgagee shall be entitled to bring such action notwithstanding the provisions of s. 108 (r).

The Land Titles Acts of Saskatchewan, Alberta and the Northwest Territories (s) provide that no action of ejectment or other action for the recovery of land for which a certificate of title has been granted shall lie against the owner except in the cases, inter alia, of a mortgagee as against a mortgagor in default and of an encumbrancee as against an encumbrancer in default.

(q) Rollefson v. Olson and the Mutual Life Ass. Co., 1915, 8 S.L.R. 143, 21 D.L.R. 671.

(r) The last mentioned section provides that a mortgage or en cumbrance under the new system shall have effect as security, but shall not operate as a transfer of land thereby charged or of any es tate or interest therein. Corresponding provisions are contained in the Land Titles Acts of Saskatchewan, Alberta and the Northwest Territories.

(s) Sask. statutes, 1917 (2nd sess.), c. 18, s. 159; Alta. statutes, 1906 c. 24, s. 104; R.S.C. 1906, c. 110, s. 142.