The English Real Property Limitation Act of 1833 contained no provision specially applicable to a suit for foreclosure eo nomine by a mortgagee out of possession, but it provided in general terms that no person should "make an entry or "bring an action to recover any land" after the statutory period. This general provision, originally enacted by s. 2 of the statute of 1833, was superseded by s. 1 of the statute of 1874 (which reduced the limitation period from twenty to twelve years), and the corresponding provision in Ontario is now contained in the Limitations Act, R.S.O. 1914, c. 75, s. 5, as follows:

(n) See Sec. Sec. 264-267, supra.

(o) The provisions affecting the mortgagee's right to sue will be first discussed. As to the provisions affecting the mortgagor's right to sue for redemption, see Sec. Sec. 277 ff.

(p) Durable v. Larush, 1878-9, 25 Gr. 552, 27 Gr. 187; Harris v. Prentiss, 1880, 30 U.C.C.P. 484, S.C. varied on another point, sub nom. Harris v. Mudie, 1882, 7 O.A.R. 414; In re Loveridge, Pearce v. Marsh, [1904] 1 Ch. 518.

(q) Faulds v. Harper, 1884, 9 O.A.R. 537, 1886, 11 Can. S.C.R. 639; Smith v. Darling, 1916, 36 O.L.R. 587, at p. 590, S.C. 55 Can. S.C.R. 82, 36 D.L.R. 1.

5. No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom he claims, or if such right did not accrue to any person through whom he claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing the same.

This section is amplified by s. 6 which defines in detail the point of time at which in various circumstances the right to make an entry or distress or to bring an action shall be deemed to have first accrued within the meaning of s. 5, and s. 7 which makes special provision as to the effect upon a future estate of the fact that the person entitled to the particular estate upon which the future estate is expectant is out of possession (r).

After some conflict of opinion, it was held that an action for foreclosure or sale is an action to recover land within the meaning of s. 5, not an action to recover money charged on land under s. 24 (s).

The statute does not apply to cases merely of want of actual possession by the plaintiff, but to those cases only where he has been out of possession and another person has been in possession for the statutory period. There must be both want of possession by the person who has the right and actual possession by another, whether adverse or not, to be protected, to bring the case within the statute. Thus, where the owner of the fee simple of a close, with minerals under it, conveyed the surface, reserving the minerals with the right of entry to get them, and he afterwards granted the minerals with such right of entry, it was held that mere non-user for the statutory period was not sufficient to bar the grantee's right of entry to get the minerals, no other person having worked or been in possession of the minerals (t).

(r) See Sec. 271, infra.

(s) Wrixon v. Vize, 1842, 3 Dr. & War. 104; Harlock v. Ash-berry, 1882, 19 Ch.D. 539; Pugh v. Heath, 1882, 7 App. Cas. 235, 16 R.C. 389; Fletcher v. Rodden, 1882, i O.R. 155; Trust and Loan Co. v. Stevenson, 1892, 20 O.A.R. 66, at pp. 79-80. As to the case of Pugh v. Heath, see also Sec. 274.

The owner of land is deemed to be in possession of waste lands which are not in the actual possession of another. Thus, where a trespasser took possession of the land of another, and without having held long enough to acquire title, abandoned possession, it was held that the owner was restored, without any actual entry, to the possession which he had before the trespass (u).

Where the mortgaged lands are not re-demised to the mortgagor, and the land is vacant at the time of the execution of the mortgage, the mortgagee is deemed to be in possession by operation of law, and the presumption of payment of the mortgage moneys after the lapse of the statutory period does not arise, even though the mortgagee has never made an actual entry or received any payment on account of the mortgage. The mere fact that the remedy on the covenant is barred by the statute will not establish a payment so as to reconvey the legal title to the mortgagor (v). So where a right of entry has accrued to a mortgagee without actual entry by him, and the mortgaged lands are subsequently left vacant before a title by possession has been acquired by anyone, the constructive possession thereof is in the mortgagee, and the statute does not run against him so as to extinguish his title to the lands, the mortgage being in default and no presumption of payment arising (w).

(t) Smith v. Lloyd, 1854, 9 Exch. 562, 16 R.C. 328. (u) Trustees, Executors, and Agency Co. v. Short, 1888, 13 App. Cas. 793; Samuel Johnson & Sons v. Brock, [1907] 2 Ch. 533. (v) Mahar v. Fraser, 1867, 17 U.C.C.P. 408.

Where a purchaser in examining a title found a mortgage which matured over 80 years previously, apparently outstanding, and required the vendors to produce the discharge of it which they declined to do, it was held that under all the circumstances the mortgage must be presumed to have been paid (x).

"Action" is defined by the interpretation clause of the Limitations Act, R.S.O. 1914, c. 75, s. 2, to include an information on behalf of the crown and any civil proceeding, but it is provided by s. 4 as follows:

4.- (1) No entry, distress, or action shall be made or brought on behalf of His Majesty against any person for the recovery of or respecting any land or rent, or of land or for or concerning any revenues, rents, issues or profits, but within sixty years next after the right to make such entry or distress or to bring such action shall have first accrued to His Majesty.

(2) Subsections 1 to 3, 5 to 7, and 9 to 12 of section 6 and sections 7, 9 to 12 and 14 to 16 shall apply to rights of entry, distress or action asserted by or on behalf of His Majesty (y).

(w) Delaney v. Canadian Pacific Ry. Co., 1891, 21 O.R. 11; cf. Bucknam v. Stewart, 1897, 11 M.R. 625 (land in a state of nature); British Canadian Loan and Agency Co. v. Farmer, 1904, 15 M.R. 593; Creamer v. Gooderham, 1914, 7 S.L.R. 173, 17 D.L.R. 235. It does not necessarily follow, however, that the mortgagee's possession is such actual possession as will operate to bar the right to redeem. See Sec. 279.

(x) Imperial Bank of Canada v. Metcalfe, 1886, 11 O.R. 467.

(y) As to ss. 6, 7, and 9 to 12, see Sec. 271, infra; as to ss. 14 and 15, see Sec. 272; and as to s. 16, see Sec. 276.