In England prior to the passing of the statute 3 & 4 W. 4, c. 27, a slight act or admission, even oral, on the part of the mortgagee, constituted a sufficient acknowledgment of the mortgagor's title to preserve his right to redeem. That statute, however, required, that the acknowledgment should be in writing signed by the mortgagee, or the person claiming through him. The corresponding provision in Ontario is R.S.O. 1914, c. 75, s. 20, by which the mortgagor's action is barred at the end of ten years after the time at which the mortgagee obtained possession (y), unless in the meantime an acknowledgment in writing of the title of the mortgagor, or of his right to redemption, has been given to the mortgagor or to some person claiming his estate, or to the agent of such mortgagor or person, signed by the mortgagee, or the person claiming through him, and in such case no action shall be brought, but within ten years next after the time at which such acknowledgment, or the last of such acknowledgments, if more than one, was given.

(v) Kinsman v. Rouse, 1881, 17 Ch.D. 104. (w) Martin v. Miles, 1884, 5 O.R. at p. 416. (x) Faulds v. Harper, 1833, 2 O.R. 405, at p. 411, 11 Can. S.C.R. €39, at pp. 645, 646.

(y) See Sec. 277, supra.

S. 20 requires that the acknowledgment should be made to the mortgagor or to some person claiming his estate, or to the agent of such mortgagor or person (z).

If a mortgagor is a party to an assignment of the mortgage, this may be a sufficient acknowledgement of his title by the mortgagee (a). But a mere recital of the mortgage and an assignment of it, subject to the equity of redemption, by a deed to which the mortgagor or a person claiming his estate is not a party is not sufficient. The assignee is a person claiming, not the mortgagor's estate, but the mortgagee's estate (b).

If a mortgagee has entered into possession, accounts of his receipt of rent are not sufficient acknowledgment unless they are signed by him and kept for or communicated to the mortgagor or his agent (c). A letter written by the mortgagee to the mortgagor intimating that the former is willing to give an account is a sufficient acknowledgment (d). But a mere admission by the mortgagee that he holds under a mortgage title is not sufficient (e).

In order that the person to whom an acknowledgment is made should be the agent of the mortgagor, it is sufficient if he has acted or has been treated as such by the person making the acknowledgment (f). On the other hand, an acknowledgment by the agent of the mortgagee is not sufficient (g), but the mortgagee's acknowledgement will bind his lessee (h).

(z) In re Metropolis, etc., Society, Gatfield's Case, [1911] 1 Ch. 698, at p. 705.

(a) Batchelor v. Middleton, 1848, 6 Hare 75.

(b) Lucas v. Dennison, 1843, 13 Sim. 584. See also Markwick v. Hardingham, 1880, 15 Ch.D. 339.

(c) In Baker v. Welton, 1845, 14 Sim. 426, this question was raised but not decided; see Sugden, Statutes relating to Real Property, 2nd ed. 117; In re Alison, Johnson v. Mounsey, 1879, 11 Ch.D. 284; 19 Halsbury, Laws of England, 151.

(d) Richardson v. Younge, 1870, L.R. 10 Eq. 275, L.R. 6 Ch. 478.

(e) Thompson v. Bowyer, 1863, 9 Jur. N.S. 863.

(f) Trulock v. Robey, 1841, 12 Sim. 402; Halsbury, op cit., 151; cf. In re Metropolis, etc., Society, Gatfield's Case, [1911] 1 Ch. 698 at p. 705.

It has been said that an acknowledgment given by the mortgagee after the expiration of the statutory period is sufficient (i), but this construction appears to be unjustified (j). The words "in the meantime" in s. 20 seem to exclude an acknowledgment given after the period has expired. Under s. 24, relating to the right to recover money out of the land (k), an acknowledgment given after the expiration of the statutory period would appear to be too late, that section also containing the words "in the meantime." A similar result has been reached under s. 14, which does not contain the words "in the meantime" (l).

The case of an acknowledgment given to one of several mortgagors or by one of several mortgagees was provided for by s. 28 of the English statute of 1833, 3 & 4 W. 4, c. 27. The corresponding provisions in Ontario are now contained in R.S.O. 1914, c. 75, ss. 21 and 22, as follows:

21. Where there are more mortgagors than one, or more persons than one claiming through the mortgagor or mortgagors, such acknowledgment if given to any of such mortgagors or persons, or his or their agent, shall be as effectual as if the same had been given to all such mortgagors or persons.

22. Where there are more mortgagees than one, or more persons than one claiming the estate or interest .of the mortgagee or mortgagees, such acknowledgment, signed by one or more of such mortgagees or persons, shall be effectual only as against the person or persons so signing, and the person or persons claiming any part of the mortgage money or land or rent by, from or under him, or them, and any person or persons entitled to any estate or estates, interest or interests, to take effect after or in defeasance of his or their estate or estates, interest or interests, and shall not operate to give to the mortgagor or mortgagors a right to redeem the mortgage as against the person or persons entitled to any other undivided or divided part of the money or land or rent; and where such of the mortgagees or persons as have given such acknowledgment are entitled to a divided part of the land or rent comprised in the mortgage or some estate or interest therein, and not to any ascertained part of the mortgage money, the mortgagor or mortgagors shall be entitled to redeem the same divided part of the land or rent on payment, with interest, of the part of the mortgage money which bears the same proportion to the whole of the mortgage money as the value of such divided part of the land or rent bears to the value of the whole of the land or rent comprised in the mortgage.

(g) Richardson v. Younge, 1871, L.R. 6 Ch. 478, at p. 480.

(h) Ball v. Lord Riversdale, 1816, Beatty 550.

(i) Stanfield v. Hobson, 1852, 3 DeG. M. & G. 620, affirming 16 Beav. 236.

(j) Markwick v. Hardingham, 1880, 15 Ch.D. 339; Sanders v. Sanders, 1881, 19 Ch.D. 373, at p. 379; Shaw v. Coulter, 1905, 11 O.L.R. 630; Rutherford v. Mitchell, 1904, 15 M.R. 390.

(k) See Sec. 265, supra.

(l) See Sec. 272, infra. The reason in the case of s. 14 is that by s. 16 the right and title to the land is extinguished after the expiration of the statutory period.

The provision that the acknowledgment of one of several mortgagees "shall be effectual only against the party signing the acknowledgment" is directed to the case of several mortgagees where an account taken against one will bind his interest but not the interest of any other person. The statute has no application to the case of a mortgage to several persons jointly as trustees. In the latter case there must be an acknowledgment by all (m).