It has been held in Saskatchewan (l), in accord with an earlier decision in Alberta (m), that an attornment clause in a mortgage under the Land Titles Act, though it may create contractual rights between the parties and a tenancy by estoppel as against the mortgagor and persons in privity with him, does not create the relation of landlord and tenant as against other persons (as, for instance, execution creditors), and does not confer on the mortgagee the protection of the statute 8 Anne, c. 14, s. 1 (n).

The alleged inapplicability to a mortgage under the Land Titles Acts of the principles of the English and Ontario cases as to the creation by attornment of a real tenancy between the mortgagor and mortgagee is based chiefly upon the fact that a mortgage under the Land Titles Acts does not convey any estate to the mortgagee but operates by way of security merely. As the estate remains in the mortgagor, it is said that there is no foundation for a redemise and no reversion in the mortgagee to which the rent is incident (o).

(k) See chapter 26, Limitation of Actions, Sec. Sec. 266 and 261.

(l) First National Bank v. Cudmore, 1917, 10 S.L.R. 201, 34 D.L.R. 201.

(m) Hyde v. Chapin Co., 1916, 26 D.L.R. 381, 9 W.W.R. 1142.

(n) This section provides in effect that goods lying or being in or upon premises which are leased shall not be liable to seizure under execution unless the execution creditor first satisfies the landlord's claim for rent to the extent of one year's arrears. See R.S.O. 1914, c. 155, s. 55, quoted in Sec. 363, supra.

It is, however, now provided in Saskatchewan by the Land Titles Act, 1917, s. 116, as follows:

116. A mortgagor may agree in writing to become the tenant of the mortgagee, and in case of such agreement heretofore or hereafter made the relationship of landlord and tenant shall be held to have been validly constituted between the parties for all purposes and as against all persons whomsoever: Provided that nothing herein contained shall affect the rights of any parties in any action or other proceeding now pending.

(q) See First National Bank v. Cudmore, supra; Hyde v. Chapin, supra. Scott, Torrens System Mortgages, at pp. 167 ff., suggests various reasons why these decisions are not altogether satisfactory.