The amount of arrears of interest which may be recovered out of the land is governed by R.S.O. 1914, c. 75, s. 18, as follows:

O.A.R. 66; Ross v. Schmitz, 1913, 6 S.L.R. 131, 14 D.L.R. 648. See also cases on a similar point under s. 54 (Sec. 263).

(m) In re Lacey, Howard v. Lightfoot, [1907] 1 Ch. 330; cf. Ames v. Mannering, 1859, 26 Beav. 583 (payment by dowress); Chin-nery v. Evans, 1864, 11 H.L.C. 115 (payment by owner of equity in one of several parcels subject to same mortgage); McKay v. Hutch-ings, 1917, 41 O.L.R. 46, (payment by one of the heirs of the mortgagor) .

(n) See Sec. 263, supra.

(o) See Sec. Sec. 272, 273, infra.

(p) Lewin v. Wilson, 1886, 11 App. Cas. 639, at pp. 646, 647; In re Frisby, Allison v. Frisby, 1889, 43 Ch.D. 106. It was held in the latter case that under s. 24 a payment by the mortgagor interrupted the running of the statute in favour of a surety.

(q) See the cases cited as to acknowledgment under s. 20 in Sec. 281, infra.

18.- (1) No arrears of rent, or of interest in respect of any sum of money charged upon or payable out of any land or rent, or in respect of any legacy, whether it is or is not charged upon land, or any damages in respect of such arrears of rent or interest, shall be recovered by any distress, or action, but within six years next after the same respectively has become due, or next after any acknowledgment in writing of the same has been given to the person entitled thereto, or his agent, signed by the person by whom the same was payable, or his agent.

(2) This section shall not apply to an action for redemption brought by a mortgagor or any person claiming under him.

Sub - sec. 1 is derived from the English statute 3 & 4 W. 4, c. 27, s. 42, adopted in Upper Canada by 4 W. 4, c. 1, s. 45. Sub-sec. 2 was added to the Ontario statute in 1910.

Money to arise from the sale of land is within this section. Where a married woman entitled, after the death of a tenant for life, to a share of a fund arising from the proceeds of lands devised upon trust for sale, joined with her husband in a mortgage, by deed acknowledged, of her reversionary estate, it was held that the wife's estate was "money payable out of land" and that the mortgagee could not recover more than six years arrears of interest (u). But in the case of a mortgage of personalty or of a reversionary interest in a sum of money secured by mortgage, the mortgagee is not restricted to six years arrears.

The proceeds of the sale of mortgaged premises, sold under the power of sale in a mortgage by the trustees of the mortgagee, were paid into court in a suit for the administration of the mortgagee's estate. There being nearly twenty years arrears of interest due on the mortgage, exceeding in amount the fund in court, the trustees petitioned for payment out of the fund to satisfy such arrears, and the assignee of the mortgagor was served with the petition. It was held that the petition was not a suit to recover arrears of interest within the section, and therefore that the mortgagee's trustees were not limited to six years arrears, and the fund was ordered to be paid over to them (w). If, however, proceedings for sale are commenced, the sale can be stopped by the payment of the amount legally owing, and in the case of a person interested in the equity of redemption other than the mortgagor or his personal representative the interest included in such amount would be limited to six years arrears (x).

(u) Bowyer v. Woodman, 1867, L.R. 3 Eq. 313.

(v) Smith v. Hall, 1878, 9 Ch.D. 143; Mellersh v. Brown, 1890, 45 Ch.D. 225.

It was held at an early date that a foreclosure suit was within the statute, notwithstanding the argument that the suit was not to recover money but to foreclose the equity of redemption (y). On this point the decision has never since been called in question, but the case has in effect been overruled in so far as it decided that a mortgagee in a foreclosure suit was entitled, notwithstanding the statute, to charge the mortgaged estate with full arrears of interest (z). The result of the authorities is that no more than six years' arrears of interest can be recovered out of the land, although in an action upon the covenant arrears of interest for ten years can be recovered (a).

Where no encumbrancer intervened between the mortgagor and mortgage'e, it was held that the mortgagee was entitled to full arrears of interest, on the ground that, even if he was entitled to only six years' arrears by way of specific charge upon the land, he might recover the rest of the arrears on the covenant and could obtain a lien on the land by placing a writ of execution in the sheriff's hands (b). The decision as applied to the foreclosure action is, however, open to serious question because the effect is to add the excess over six years' arrears to the price of redemption, and thus, as to the excess, to deprive the execution debtor of a portion of the twelve months which the law allows him for paying so far as his lands are concerned. The decision as applied to a redemption action was formerly open to the same objection.

(w) Edmunds v. Waugh, 1866, L.R. 1 Eq. 418, 16 R.C. 291. See also In re Marshfield, Marshfield v. Hutchins, 1887, 34 Ch.D. 721; In re Lloyd, Lloyd v. Lloyd, [1903] 1 Ch. 385 (where the decisions are reviewed); Ford v. Allen, 1869, 15 Gr. 565.

(x) McMicking v. Gibbons, 1897, 24 O.A.R. 586, at p. 592.

(y) DuVigier v. Lee, 1843, 2 Hare 326.

(z) Hunter v. Nockolds, 1850, 1 Mac. & G. 640.

(a) Airey v. Mitchell, 1874, 21 Gr. 510, at p. 512 (twenty years in the case of a mortgage made before the 1st of July, 1894: see s. 49, in Sec. 261, supra).

In a foreclosure action it is clear that if encumbrances intervene between the mortgagor and the mortgagee, the latter cannot as against the subsequent encumbrancers claim more than six years' arrears against the land, although he may be entitled to judgment and execution against the mortgagor on the covenant. In a redemption action on the other hand it was held (c) that the mortgagee was entitled to full arrears even as against subsequent encumbrancers, on the ground that the statute applied only to a case where the mortgagee by action was seeking to enforce payment. This decision was overruled, on this point in an action for redemption by a second mortgagee against a first mortgagee, the mortgagor not being a party-on the principle that the price of redemption is the same as that of foreclosure (d). The last mentioned decision has been overruled by the amendment of the statute now embodied in sub-s. 2 of s. 18.

(b) Howeren v. Bradburn, 1875, 22 Gr. 96 (a redemption suit under the Administration of Justice Act, 1873); Macdonald v. Mac-donald, 1886, 11 O.R. 187 (a foreclosure action under the Judicature Act).

(c) Delaney v. Canadian Pacific Ry. Co., 1890, 21 O.R. 11; see also British Canadian Loan and Agency Co. v. Farmer, 1904, 15 M. R. 593.

(d) McMicking v. Gibbons, 1897. 24 O.A.R. 586; see also Dingle v. Coppen, [1899] 1 Ch. 726; In re Lloyd, Lloyd v. Lloyd, [1903] 1 Ch. 385.

The case of a prior mortgagee having been in possession within.one year before action is brought by a subsequent mortgagee is provided for by R.S.O. 1914, c. 75, s. 19, as follows:

19. Where any prior mortgagee or other encumbrancer has been in possession of any land, or in receipt of the profits thereof, within one year next before an action is brought by any person entitled to a subsequent mortgage or other encumbrance on the same land, the person entitled to such subsequent mortgage or encumbrance may recover in such action the arrears of interest which have become due during the whole time that such prior mortgagee or encumbrancer was in such possession or receipt, although such time may have exceeded such term of six years.

This section is derived from the English statute 3 & 4 W. 4, c. 27, s. 42, adopted in Upper Canada by 4 W. 4, c. 1, s. 45.