It was held by Jessel, M.R., in Kinsman v. Rouse, (u), that the time within which a mortgagor or any person claiming through him might sue for redemption was not to be extended by reason of his being under any disability. The disabilities provision (v) saves the right of any person "to bring an action to recover any land" if such person is under disability, but, as Jessel, M.R. pointed out, an action to redeem is not, properly speaking, "an action to recover land," and the section evidently refers to cases of ordinary ownership, where the rightful owner has been dispossessed. S. 20 (w) contains no qualification of the rights of the mortgagee as against the mortgagor and there is no reason for extending the disabilities provision to the case of a mortgagor.

The same result was reached in Forster v. Patterson (x) by Bacon, V.C., who laid emphasis on the order in which the sections are arranged. In the English statute the section relating to actions by a mortgagor follows the disabilities section, and Bacon, V. C, considered it clear that one is not at liberty to read into the special section relating to mortgagors a qualification derived from an earlier and more general section. In the English statute (37 & 38 V. c. 57, similar in arrangement to 3 & 4 W. 4, c. 27) the matter is made more plain because the disabilities section begins, "If at the time at which the right of any person to make an entry or distress, or to bring an action or suit to recover any land or rent shall have first accrued as aforesaid"- thus referring back to the earlier sections. The Upper Canada statute 4 W. 4, c. 1, is similar in arrangement and wording to the English statutes.

(t) Samuel Johnson & Sons v. Brock, [1907] 2 Ch. 533; cf. Wakefield and Barnsley Union Bank v. Yates, [1916] 1 Ch. 452.

(u) 1881, 17 Ch.D. 104.

(v) R.S.0.1914, c. 75, s. 40. See Sec. 275, supra.

(w) Sec. 277, supra.

(x) 1881, 17 Ch.D. 132.

In C.S.U.C. 1859, c. 88, s. 45, the similar expression " as hereinbefore mentioned" is used, and in R.S.O. 1877, c. 108, s. 43 "as aforesaid," but inasmuch as the section relating to actions by mortgagors precedes the disabilities section, the application of the latter section to the former is not necessarily excluded by the expressions quoted. In R.S.O. 1887, c. 111, s. 43, and R.S.O. 1897, c. 133, s. 43, the reference is made quite specific by the expression "as in sections 4, 5 and 6 mentioned," so that the application of the disabilities section to the redemption section is excluded, unless a suit for redemption should be held to be an " action to recover land," contrary to the opinion of Jessel, M.R., in Kinsman v. Rouse, supra. In 10 E. 7, c. 34, s. 40, and R-S.O. 1914, e. 75, s. 40, the more general expression "as herein mentioned" is substituted for the specific reference to the earlier sections, but it has been held that no change in meaning was intended (y).

In Faulds v. Harper a divisional court held that the disabilities section (R.S.O. 1877, c. 108, s. 43) applied to a suit for redemption (z). This decision was, however, reversed by the Court of Appeal (a). On appeal to the Supreme Court of Canada the judgment of the Court of Appeal was in turn reversed (b), the decision being based chiefly on the ground that the action was virtually to impeach a purchase by a trustee for sale and that therefore the statute of limitations had no application. Strong, J. said (c):

(y) Smith v. Darling, 1917, 55 Can. S.C.R. 82, 36 D.L.R. 1, affirming 36 O.L.R. 587, 32 D.L.R. 307

(z) 1883, 2 O.R. 405, the case of Hall v. Caldwell, 1861, 7 U.C.L. J.O:S. 42, 8 U.C.L. J.O.S. 93, in the Court of Error and Appeal being followed in preference to Kinsman v. Rouse, supra, and Forster v. Patterson, supra.

(a) 1884, 9 O.A.R. 537. See especially the remarks of Patterson,. J.A., at pp. 554 ff. with regard to the case of Hall v. Caldwell, and with regard to the effect of the changes of wording made in the successive revisions.

"I think It well, however, to add that if I had to choose between the decisions in Caldwell v. Hall and those in Kinsman v. Rouse and Forster v. Patterson, I should certainly have agreed with the learned judges of the Divisional Court; for the reason that since the two cases in 17 Chancery Division, were decided, the House of Lords has held in Pugh v. Heath, 7 App. Cas. 235, that a foreclosure suit is an action for the recovery of land (d). This being so it follows a fortiori that a redemption suit is also an action or suit for the recovery of land. And it is impossible, without doing violence to the words of the statute, to hold that the saving of disabilities does not apply to any action or suit, as well in equity as at law, for the recovery of land."

Whether an action for redemption is or is not an action to recover land, the dictum of Strong, J. that the disabilities clauses of the statute apply to a suit for redemption was overruled, and the decision of the Court of Appeal in Faulds v. Harper, was followed, in the case of Smith v. Darling (e).