If a mortgagee has a right of distress by virtue of a tenancy created by attornment (w), there are certain limitations imposed by statute upon his right.

It is provided in Ontario by the Landlord and Tenant Act, R.S.O. 1914, c. 155, s. 31, as follows:

31.-(1) A landlord shall not distrain for rent on the goods and chattels of any person except the tenant or person who is liable for the rent, although the same are found on the premises; but this restriction shall not apply in favour of a person claiming title under an execution' against the tenant, or in favour of a person whose title is derived by purchase, gift, transfer, or assignment from the tenant, whether absolute or in trust, or by way of mortgage or otherwise, nor to the interest of the tenant in any goods or chattels on the premises in the possession of the tenant under a contract for purchase, or by which he may or is to become the owner thereof upon performance of any condition, nor where goods or chattels have been exchanged between tenants or persons by the one borrowing or hiring from the other for the purpose of defeating the claim of or the right of distress by the landlord, nor shall the restriction apply where the property is claimed by the wife, husband, daughter, son, daughter-in-law, or son-in-law of the tenant, or by any other relative of his, if such other relative lives on the premises as a member of the tenant's family, or by any person whose title is derived by purchase, gift, transfer or assignment from any relative to whom such restriction does not apply.

(2) Nothing in this section shall exempt from distress goods or chattels in a store or shop managed or controlled by an agent or clerk for the owner of such goods or chattels where such clerk or agent is also the tenant and in default, and the rent is due in respect of the store or shop or premises rented therewith and thereto belonging, if such goods or chattels would have been liable to seizure but for this Act.

(v) Scobie v. Collins, [1895] 1 Q.B. 375. (w) Sec. 362, supra.

(3) Subject to the provisions of section 34 (x), "tenant" in this section shall include a sub-tenant and the assigns of the tenant and any person in actual occupation of the premises under or with the assent of the tenant during the currency of the lease, or while the rent is due or in arrear, whether or not he has attorned to or become the tenant of the landlord.

A tenant who has been let into possession by a lessor (y) or who has attorned to the lessor under seal (z) is estopped from denying his lessor's title, but third persons, not claiming possession of the land under the tenant are not so estopped. Therefore a person who lets premises to which he has no title to a tenant, cannot distrain for arrears of rent due from the tenant on the goods of a third person which happen to have been brought on the premises by the tenant's license (a). If, however, the lessor has the title to the land he would, apart from the statute above mentioned, have the right to distrain on the goods of a third person (b), and he still has the right to do so in the exceptional cases mentioned in the statute.

If a mortgagee's right to distrain is founded only upon an express power to distrain under the so-called statutory distress clause (c), the right is merely a personal license to distrain upon the goods, of the mortgagor. There being no tenancy, the mortgagee has not the ordinary right of a landlord to distrain upon the goods of a stranger found upon the premses, even as limited by s. 31 of the Landlord and Tenant Act (d).

(x) Which requires that the landlord who desires to seize exempted goods shall serve upon the tenant a notice in a prescribed form.

(y) Cooke v. Loxley, 1792, 5 T.R. 4, 15 R.C. 297; Delaney v. Fox, 1857, 2 C.B.N.S. 768, 15 R.C. 299.

(z) Ex parte Voisey, In re Knight, 1882, 21 Ch.D. 442, at p. 456.

(a) Tadman v. Henman, [1893] 2 Q.B. 168.

(b) Lyons v. Elliott, 1876, 1 Q.B.D. 210, at 213; Clarke v. Millwall Dock Co., 1886, 17 Q.B.D. 494, 9 R.C. 655.

(c) I.e. under the distress clause contained in schedule B to the Short Forms of Mortgages Act. See Sec. 361, supra.

In 1886 was enacted the provision which is now contained in the Mortgages Act, R.S.O. 1914, c. 112, s. 13, as follows:

13. The right of a mortgagee to distrain for interest in arrear upon, a mortgage made after the 25th day of March, 1886, shall be limited to the goods and chattels of the mortgagor, and to such of them as are not exempt from seizure under execution.

As regards the right to distrain merely under an express power to distrain this section simply declares the law, except that the right to distrain is further limited to such goods and chattels of the mortgagor as are not exempt from seizure under execution (e).

There has, however, been considerable difference of opinion on the question whether this section applies also to the case of a mortgagee who has a right to distrain by virtue of a tenancy created by attornment or whether the mortgagee in such case has the ordinary right of a landlord to distrain as limited only by s. 31 of the Landlord and Tenant Act. This question is complicated by the fact that in 1887 the Mortgages Act was further amended by the addition of a section providing that the mortgagee's right to distrain "for arrears of interest or for rent" should be restricted to one year's arrears of such "interest or rent" (f). The distinction drawn in the statute of 1887 between interest and rent, if applied to the statute of 1886, would seem to lead to the conclusion that the statute of 1886 should be limited to the case of distress for interest. It has been held, however, in Ontario that the statute of 1886 applies also to the case of distress under a tenancy created by attornment (g). Osier, J.A. said:

(d) Trust and Loan Co. v. Lawrason, 1882, 6 O.A.R. 286, 10 Can. S.C.R. 679; Edmonds v. Hamilton Provident and Loan Society, 1891, 18 O.A.R. 347, at p. 358.

(e) As to the goods and chattels of a debtor which in Ontario are exempt from seizure under execution, see the Execution Act, R.S.O. 1914, c. 80. Goods and chattels which are exempt from seizure under execution are not liable to seizure by distress by a landlord for rent with certain execeptions specified in the Landlord and Tenant Act, R.S.O. 1914, c. 155, ss. 30, 33 and 34.

(f) Now R.S.O. 1913, c. 112, s. 14. See the text of the section in Sec. 365.

"This section has also, I think, the effect of limiting in the same way any right of distress which the mortgagees might otherwise have had under another clause in the mortgage by which the mortgagors 'attorn to and become tenants at will to the mortgagees, at a rent equal in amount to the interest reserved, payable at the time mentioned in the proviso.' This section is a general one taken from section 3 of 49 Vict. ch. 29, An Act Respecting Landlords and Tenants and Distresses. Had it been intended to deal only with the mortgagee's right to distrain under a mere license, the enactment would have been unnecessary. I think the intention was to reach every case in which the mortgagee whether in the character of landlord or licensee, still under and for the purposes of the mortgage, had the right to distrain. The section is wide enough to cover every case and I cannot accede to the argument that the next section, which is taken from a subsequent act, controls its generality" (h).

In Manitoba it has been held that a similar statute has reference not to the right of a mortgagee to distrain for rent under a tenancy validly created but only to the right to distrain for interest under a mere license to distrain, such as the statutory short form of distress clause (i).

Where a mortgage deed contains a provision that the mortgagee may distrain for arrears of interest and also an attornment clause by which the mortgagor becomes a tenant of the mortgagee, and the mortgagee distrains for arrears of interest, but not for rent as such, on the erops of a lessee of the mortgagor, the distress is wholly illegal for the defendant can take only the goods of the mortgagor for arrears of interest (j).

(g) Edmonds v. Hamilton Provident and Loan Society, 1891, 18 O.A.R. 347. The contrary view, expressed in Burton, J. A.'s judgment, seems more reasonable.

(h) 18 O.A.R. 347, at p. 358. See also Vousden v. Hopper, 1911, 4 S.L.R. 1, at pp 6, 7.

(i) Linstead v. Hamilton Provident and Loan Society, 1896, 11 M.R. 199; McDermott v. Fraser, 1915, 25 M.R. 298, 23 D.LR. 430.