The English statute of 1833, 3 & 4 W. 4 c. 27, also contained a section limiting the time within which an action might be brought to recover any sum of money secured by any mortgage or lien or otherwise charged upon or payable out of land or rent, and by this section provision was made as to the effect not only of an acknowledgemnt in writing, but also of a payment of part of the principal or interest (z).

As the provision just mentioned was confined to an action to recover money, an additional and explanatory statute - 7 W. 4&1V.C. 28 - was passed in England in 1837 "for the purpose of preserving in the mortgagee the right to make an entry and bring an ejectment to recover the lands" (a). This explanatory statute was superseded by s. 9 of the statute of 1874 (which reduced the limitation period from twenty to twelve years). The English statute was adopted in Upper Canada in 1853 by 16 V. c. 121, and the period was reduced to ten years by the statute 38 V. c. 16, s. 12. The provision now appears in R.S.O. 1914, c. 75, s. 23, as follows:

23. Any person entitled to or claiming under a mortgage of land may make an entry or bring an action to recover such land, at any time within ten years next after the last payment of any part of the principal money or interest secured by such mortgage, although more than ten years have elapsed since the time at which the right to make such entry or bring such action first accrued.

A payment under s. 23 must be a payment by a person liable to pay as mortgagor or his agent, or at least by a person bound or entitled to make a payment of principal or interest for the mortgagor (b). A payment of rent made by a tenant of the mortgaged property to the mortgagee pursuant to a notice by the mortgagee requiring the rent to be paid to him is not such a payment (c), but a payment made by any person "concerned to answer the debt," or by a person who under the mortgage contract is entitled to make a tender, and from whom the mortgagee is bound to accept a tender, of money for the redemption of the mortgage, is a sufficient payment (d). So, a payment is sufficient if made by a person who has become bound to the debtor to pay, for instance, a transferee of the equity of redemption who is bound as between himself and the transferor to pay, notwithstanding that such transferee has himself transferred the equity to a third person (e).

(z) This provision was amended in 1874 and the corresponding provision in Ontario is R.S.O. 1914, c. 75, s. 24. See Sec. Sec. 264 and 265, supra.

(a) Chinnery v. Evans, 1864, 11 H.L.C. 115, at p. 133.

(b) Chinnery v. Evans, 1864, 11 H.L.C. 115.

The provision of s. 56 of the Limitations Act (f) by which no joint debtor or covenantor is to lose the benefit of the statute by reason only of an acknowledgment or payment by another joint debtor or covenantor applies only to an acknowledgment or payment under ss. 54 and 55, not to an acknowledgment or payment under s. 24 or under ss. 14 and 23 (g).

The provisions of s. 23 apply not only as against the mortgagor and persons claiming under him but also as against a person who has acquired a good title by virtue of the statute of limitations as against the mortgagor and those claiming under him (h). The section does not, however, confer a new right of entry on a mortgagee when at the date of the mortgage a person is in possession in whose favour the statute has already begun to run against the mortgagor (i).

(c) Harlock v. Ashberry, 1882, 19 Ch.D. 539. See Sec. 265, supra, where this case is more fully referred to.

(d) Lewin v. Wilson, 1886, 11 App. Cas. 639, at pp. 644, 646. In this case it was held that a payment by the principal debtor was sufficient to create a new starting point as against the land of a surety.

(e) Trust & Loan Co. v. Stevenson, 1892, 20 O.A.R. 66; see also Ross v. Schmitz, 1913, 6 S.L.R. 131, 14 D.L.R. 648.

(f) See Sec. 265, supra.

(g) Lewin v. Wilson, supra; In re Frisby, Allison v. Frisby, 1889, 43 Ch.D. 106.

(h) Ludbrook v. Ludbrook, [1901] 2 K.B. 96.

The payment of taxes by the moragagor constitutes a sufficient acknowledgment of the mortgagee's title so as to interrupt the running of the statute, if the payment is made in pursuance of an express agreement with the mortgagee that the mortgagor will pay the taxes as rent, and no other rent is stipulated for (j), but the payment of the taxes only is not sufficient if it has been agreed that the taxes should be paid in addition to a named rent (k).