A limitation of actions or other proceedings to recover sums of money secured by mortgage or lien or otherwise charged upon or payable out of any land or rent was imposed in England by the Real Property Limitations Act of 1833 (3 & 4 W. 4, c. 27) s. 40. This section was superseded by the statute of 1874 (37 & 38 V. c. 57) s. 8, by which the period of limitation was reduced from twenty to twelve years. The English statute of 1833 was adopted in Upper Canada in 1834 as 4 W. 4, c. 1, s. 43, and by 38 V. c. 16, s. 11, the period was reduced to ten years (w). The corresponding provision in Ontario is the Limitations Act, R.S.O. 1914, c. 75, s. 24, as follows:

24.-(1) No action shall be brought to recover out of any land or rent any sum of money secured by any mortgage or lien, or otherwise charged upon or payable out of such land or rent, or to recover any legacy, whether it is or is not charged upon land, but within ten years next after a present right to receive the same accrued to some person capable of giving a discharge for, or release of the same, unless in the meantime some part of the principal money or some interest thereon has been paid, or some acknowledgment in writing of the right thereto signed by the person by whom the same is payable, or his agent, has been given to the person entitled thereto or his agent; and in such case no action shall be brought but within ten years after such payment or acknowledgment, or the last of such payments or acknowledgments if more than one, was made or given.

(2) Notwithstanding the provisions of subsection 1, a lien or charge created by the placing of an execution or other process against land in the hands of the sheriff, or other officer to whom it is directed, shall remain in force so long as such execution or other process remains in the hands of such sheriff or officer for execution and is kept alive by renewal or otherwise.

The words "out of any land or rent" in the first and second lines of the section are not in the English statute. They pp. 646, 647; In re Frisby, Allison v. Frisby, 1889, 43 Ch.D. 106. As to the acknowledgment by one of several mortgagees in the case of an action to redeem, see Sec. 281, infra, (w) Cf. Sec. 269, infra.

"Action" is defined by s. 2 as including any civil proceeding, and a sale under the power of sale contained in a mortgage is a "proceeding" under s. 24, which the mortgagee or his assignee is precluded from taking after the lapse of ten years (b).

An action for foreclosure is not within s. 24, but is an action to recover land within s. 5 (c).

It was held that the right of an execution creditor under a writ of fieri facias in the hands of the sheriff of the county in which the lands of the debtor are situate is a "lien," the money mentioned in the court is "money charged upon land," and taking steps to sell under the writ is a "proceeding." Therefore if a writ had been more than ten years in the sheriff's hands, and no payment or acknowledgment had in the meantime been made or given, the lien was gone and the proceeding would be restrained (d). In 1905, however, by 5 E. 7, c. 13, s. 10, the section was amended by the addition of a proviso which is now reproduced in altered form in sub-sec. 2. An action on the judgment of a court of record is barred after the expiration of twenty years (e).

(x) R.S.O. 1887, c. Ill, s. 23. (y) See Sec. 261, supra.

(z) McDonald v. Elliott, 1886, 12 O.R. 98, following Allan v. McTavish, 1878, 2 O.A.R. 278.

(a) Sutton v. Sutton, 1882, 22 Ch.D. 511, 16 R.C. 298; cf. Kirk-land v. Peatfield, [1903] 1 K.B. 756. Sutton v. Sutton was distinguished in In re Powers, Lindsell v. Phillips, 1885, 30 Ch.D. 291; see also In re Frisby, Allison v. Frisby, 1889, 43 Ch.D. 106, as to an action against a surety, not the mortgagor. The decision in Sutton v. Sutton applies to an action on the covenant, not to a simple contract debt. Barnes v. Glenton, [1899] 1 Q.B. 885.

(b) McDonald v. Grundy, 1904, 8 O.L.R. 113; cf. Smith v. Brown,. 1890, 20 O.R. 165.

(c) See Sec. 270, infra.

The words "present right to receive" are to be read according to their ordinary meaning in the English language, and the statute runs from the time at which the charge upon the land comes into existence, not from that at which the right to sue arises (f).

It is provided by R.S.O. 1914, c. 75, s. 25, as follows:

25. No action shall be brought to recover any sum of money or legacy charged upon or payable out of any land or rent, and secured by an express trust, or to recover any arrears of rent or of interest in respect of any sum of money or legacy so charged or payable and so secured, or any damages in respect of such arrears, except within the time within which the same would be recoverable if there were not any such trust.

This section is derived from the English statute 37 & 38 V. c. 57, s. 10, adopted in Ontario in 1874 by 38 V. c. 16; s. 13. The effect of the section when originally enacted was to modify slightly the equitable rule that no claim of a cestui que trust against his trustee for any property held upon an express trust or in respect of the breach of such trust should be held to be barred by any statute of limitations (r). The law as to the effect of lapse of time on a claim against a trustee was changed in England in 1888 by a statute which was adopted in Ontario in 1891 (s), but the amending statute is subject to some important exceptions, and in some circumstances the old equitable rule may still govern (t).

(d) Neil v. Almond, 1897, 29 O.R. 63. This decision was followed in In re Woodall, 1904, 8 O.L.R. 288.

(e) Butler v. McMicken, 1900, 32 O.R. 422.

(f) In re Owen, [1894] 3 Ch. 220, at p. 225; Hornsey Local Board v. Monarch Investment Building Society, 1889, 24 Q.B.D. 1. (r) Underhill, Law of Trusts, 7th ed., p. 486. (s) See now R.S.O. 1914, c. 75, ss. 46, 47 and 48.