In Ontario it is provided by the Land Titles Act, R.S.O. 1914, c. 126, s. 34, as follows:

34. Subject to any entry to the contrary on the register the registered owner of a registered charge may enforce it by foreclosure or sale (b) in the same manner and under the same circumstances in and under which he might enforce the same if the land had been transferred to him by way of mortgage, subject to a proviso for redemption.

Under this section the procedure for obtaining foreclosure or sale in the case of a charge under the Land Titles Act is the ordinary procedure discussed in the foregoing portions of this chapter. It is to be observed, however, that in the case of a conveyance of the legal estate by way of mortgage in the old form, the mortgagee, after foreclosure, retains the legal estate discharged from the mortgagor's equity of redemption. On the other hand as a chargee under a statutory charge has not the legal estate but merely a lien upon the land, he does not obtain the legal estate by the final order of foreclosure, though he may subsequently become absolutely entitled to the land by getting himself registered as the proprietor (c). It is provided by land titles rule 27 as follows:

(a) McCollum v. Caston, 1901, 1 O.L.R. 240.

(b) The word "sale" in this section refers to sale under the direction of the court in an action. Sale under the power of sale is provided for by s. 35. See chapter 31, Sale,under Power of Sale Sec. 345.

(c) Cf. Williams, Real Property, 21st ed., pp. 675, 654.

27.-(4) In the event of a foreclosure or sale being enforced by the registered owner of the charge, the master of titles shall, upon the application of the person entitled to the benefit of the foreclosure or sale, and on proper proof, make all necessary entries in the register. The applicant is to leave with the master a draft of the entry which he considers himself entitled to.

In Manitoba there are two systems of land registration-registration of deeds under the Registry Act and registration of titles under the Real Property Act, designated as the old system and the new system respectively (d). In the case of land under the old system the procedure in actions for foreclosure or sale is very similar to that prevailing in Ontario (e), but in the case of lands under the new system a special statutory procedure is provided for sale and for foreclosure, and there is no statutory provision expressly authorizing recourse to be had in the alternative to the courts for foreclosure or sale. Whether, in the absence of express provision, the courts have jurisdiction to entertain actions for foreclosure or sale in respect of land under the new system is a question about which there has been difference of opinion and to understand which it is necessary to have regard to the course of legislation in Manitoba.

The land titles system was introduced in Manitoba by the Real Property Act of 1885 (f) which, as regards mortgages, was substantially the same as the statute then in force in Victoria, with an important exception to be noted later. This statute contained provisions authorizing sale by the mortgagee, these provisions being somewhat similar to ss. 118 and 119 of the present statute (g) except that the proceedings were not subject to the supervision or direction of the registrar.

(d) See chapter 10, Land Titles Acts, Sec. 91.

(e) See Williams, King's Bench Act.

(f) As to the history of the Manitoba legislation, see Smith v. National Trust Co., 1912, 45 Can. S.C.R. 618, 1 D.LR. 698; Williams v. Box, 1910, 44 Can. S.C.R. 1; Thorn, The Canadian Torrena System, pp. 310 ff., 817, and appendix H.

(g) Real Property Act, R.S.M. 1913, c. 171.

In 1889 foreclosure after abortive sale was authorized by provisions substantially similar to s. 122 of the present statute.

In 1892 a statute was passed requiring in effcet that the manner in which a sale should be conducted as well as the conditions of sale should be determined by the registrar.

In 1900 the statute was revised and put substantially in its present form, and. it was enacted that the mortgagee might, after default and the giving of notice in accordance with the statute, sell in such manner as the registrar might direct and subject to such conditions as the registrar might think fit (h).

Other important changes were made by the statute of 1900. A section corresponding to s. 116 of the present statute (i) was inserted, providing in effect that every;first mortgagee should have the same rights and remedies as if the legal estate had been vested in him subject to a proviso for quiet enjoyment by the mortgagor until default. A similar section was contained in the Victorian statute which served as a model for the Manitoba Statute of 1885, but it had been omitted from the latter statute.

Prior to 1906 there was no express reference in the statute to an action for foreclosure or sale, as distinguished from sale and foreclosure in the land titles office, but there was a provision (j) that "nothing in this Act shall take away or affect the jurisdiction of any competent court on the ground of fraud, or over contracts for the sale or other disposition of land or over equitable interests therein." In the year mentioned the provision just quoted was amended by the addition of the words "or over mortgages, nor shall anything contained in this Act affect the right of the mortgagee to foreclose or sell through any competent Court, which right it is hereby declared may be exercised in such Court," and the predecessor of s. 116 of the present statute was amended by specifying among the rights and remedies of a first mortgagee " the right to sell or foreclose through any competent Court."

(h) For a comparison between the provisions of the Manitoba, Saskatchewan and Alberta statutes as to sale proceedings in the registrar's office, see Sec. 247, infra. The question whether a mortgagee may validly stipulate for a contractual power of sale is discussed in chapter 31, Sale under Power of Sale, Sec. 345.