The bringing of an action for possession will prevent the further lapse of time from being a bar to the plaintiff's claim (l) unless the action is afterwards discontinued or the writ of summons is not served or renewed within the period allowed for these purposes (m).

Where an action has become defective by the death of a party or otherwise, the discretion of the court will not be exercised to allow the proceedings to continue if there has been great delay or gross negligence (n).

It has been held that a proceeding under the Quieting

(i) Thornton v. France, [1897] 2 Q.B. 143. In so far as Cameron v. Walker, 1890, 19 O.R. 212, is a decision to the contrary, it is overruled by Thornton v. France: see McVity v. Trenouth, 1905, 9 O.L.R. 105, at p. 109, S.C. 36 Can. S.C.R. 455, [1908] A.C. 60.

(j) East v. Clarke, 1915, 33 O.L.R. 624, 23 D.L.R. 74.

(k) Finch v. Gilray, 1889, 16 O.A.R. 484; Brennan v. Finley, 1905, 9 O.L.R. 131.

(l) Turley v. Williamson, 1865, 15 U.C.C.P. 538.

(m) Pratt v. Hawkins, 1846, 15 M. & W. 399; Doyle v. Kauffman, 1877, 3 Q.B.D. 7, 340; Hewitt v. Barr, [1891] 1 Q.B. 98; Travato v. Dominion Canners, 1916, 35 O.L.R. 295, 26 D.L.R. 507.

(n) Curtis v. Sheffield, 1882, 20 Ch.D. 398.

Titles Act (o) is not an action or proceeding that will prevent the statute from running (p).

Where in Nova Scotia an action of ejectment was brought by the mortgagee to recover possession of the mortgaged lands, in which judgment was obtained and a writ of possession issued but not executed, it was held that these proceedings interrupted the running of the statute as against the mortgagee seeking foreclosure (q).

A question which on principle is debateable is whether an action for foreclosure in which possession is not claimed (r) is sufficient to interrupt the running of the statute. Strictly speaking, if the question were open, it would seem that a mortgagee who takes the legal title by his mortgage, must, like any other owner of land who is out of possession, bring an action for recovery of the land within the statutory period and cannot properly be said to have brought such an action when he seeks no remedy in rem but merely seeks to deprive the mortgagor of his equitable right to redeem (s). On the other hand in the case of an equitable mortgage forming a first charge on the legal estate it would be easier than in the case of a legal mortgagee to justify the view that a foreclosure action is an action to reeover land, because in the case of a foreclosure action upon such equitable mortgage the plaintiff seeks not merely to deprive the mortgagor of his equitable right but also to acquire the legal title. It is obvious, however, that a legal mortgagee ought not to be in a worse position than an equitable mortgagee as regards the statute of limitations and that it would be unjust to deprive a mortgagee of the whole benefit of a final order of foreclosure obtained before his claim to the land is barred on the ground that he has not brought an action for possession within the statutory period.

(o) Now R.S.O. 1914, c. 123.

(p) Laing v. Avery, 1867, 14 Gr. 33.

(q) McKeen v. McKay, 1875, Russ. (N.S. Eq.) 121.

(r) A claim for possession may now be joined with a claim for foreclosure in one action, and such a combination of claims is in accordance with the usual practice. See chapter 22, Action for Possession, Sec. 211.

(s) See chapter 3, Legal Mortgage in Equity, Sec. 22, as to the nature of foreclosure.

The question is concluded by the case of Pugh v. Heath (t) to the extent that it was there held that the effect of an order of foreclosure absolute obtained by a legal mortgagee is to vest the ownership of and beneficial title to the mortgaged land for the first time in the mortgagee, so that an action, brought by the mortgagee within twenty years next after an order of foreclosure, to recover possession of the land was not barred by the statute of limitations (u), although more than twenty years had elapsed since the legal estate in the land had been conveyed to the mortgagee and since the last payment of principal or interest secured by the mortgage (v).

Where a third party went into possession after the making of a mortgage and remained in possession for more than the statutory period without payment of rent or acknowledgment of title, it was held that he had not acquired a title by lapse of time as against the grantee under the sheriff's deed made under the direction of the court in foreclosure proceedings, the foreclosure having been completed less than the statutory period before the bringing of the action by the grantee against the person in possession (w).

(t) 1882, 7 App. Cas. 235, 16 R.C. 389 (Earl Cairns, Lord O'Hagan, Lord Blackburn and Lord Watson), affirming Heath v. Pugh, 1881, 6 Q.B.D. 345, 16 R.C. 376 (Lord Selborne, L.C., Baggallay and Brett, L.J J. reversing Lord Coleridge C.J. and Lindley J.).

(u) 3 & 4 W. 4, c. 27 and 1 V. c. 28, under which the period was twenty years, whereas now it is twelve years in England and ten years in Ontario.

(v) The order for foreclosure absolute is not, however, equivalent to a judgment for possession, and if the mortgagee has not claimed possession in the foreclosure action he must bring an action for possession. Wood v. Wheater, 1882, 22 Ch.D. 281.

A mortgagee of land, instead of proceeding to foreclosure and sale, brought an action of ejectment against the mortgagor, and recovered judgment on default of appearance and plea. The judgment was recorded but no further steps were taken upon it for a period of upwards of twenty years, either by revivor or issue of execution, or by taking possession of the land. It was held that the judgment could not be enforced after the expiration of twenty years from its date, and that the lapse of time was a bar to both the mortgage and the judgment (x).