Time will not run against the mortgagor so long as the possession of the mortgagee may be referred to another title and is not adverse. Thus, a person to whom property was mortgaged by the tenant for life and remainderman, after having been in possession for six years without any acknowledgment of the mortgagor's title, purchased the interest of the tenant for life, and then continued in possession for twenty years. It was held that such possession was not adverse during the existence of the life estate so purchased, and that the statute 3 & 4 W. 4, c. 27, s. 28 (f) was not, therefore, a bar to a suit for redemption by the remainderman or reversioner (g).

(b) 1886, 11 Can. S.C.R. 639.

(c) Ibid., at p. 655.

(d) As to the case of Pugh v Heath, see Sec. 274, supra.

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

In Faulds v. Harper (h) an action for foreclosure had been brought and a decree had been made for a sale. The lands were sold pursuant to the decree and were purchased by one Harper, who acted for and in collusion with the mortgagee. Harper then conveyed to the mortgagee, who took possession and thenceforth dealt with the lands as absolute owner. In an action to redeem it was held that as the mortgagee had been in possession not as mortgagee but as purchaser, the statute of limitations did not apply. The action was virtually one to impeach a purchase by a trustee for sale, to which no statute of limitations was applicable.

Similarly if a mortgagee sells under a power of sale according to the terms of which he is an express trustee of the surplus, the statute of limitations does not apply to an action by the mortgagor to make the mortgagee account for the surplus (i).

A security for money lent was expressed in the form of a conveyance to the lender on trust to sell. He entered into possession and remained in possession for more than twenty years. His devisees in trust agreed to sell the mortgaged estate for a sum exceeding the amount owing for principal, interest and costs, and conveyed it to the purchaser by a deed in which the trust for sale was recited. It was held that the security was simply a mortgage, that the statute of limitations applied, that the devisees in trust sold as owners in fee and that the mortgagors had no right to the surplus of tin purchase money (j)

(f) See now R.S.O. 1914, c. 75, s. 20, quoted in Sec. 277, supra.

(g) Hyde v. Dalloway, 1843, 2 Hare 528. See also Raffety v. King, 1836, 1 Keen 601.

(h) 1886, 11 Can. S.C.R. 639. See the cases cited by Strong, J. at pp. 647 ff.

(i) See Sec. 261, supra.

If, moreover, the mortgagee conveys the lands to a purchaser who goes into possession, the mortgagee may set up the possession of the purchaser in addition to his own possession, if any, as mortgagee, so as to bar the mortgagor's claim (k).

The possession required by the statute must be the possession of one person, or of several persons claiming one from or under another by conveyance, will or descent (l).

Where the solicitor of a mortgagor paid off the mortgage for his own benefit but did not take an assignment of the mortgage, it was held that his possession was the possession of his client and that time did not run against the client (m).

The words "possession or receipt of the profits" in R.S.O. 1914, c. 75, s. 20 (n) seem to include the case of the mortgagee receiving rent from a tenant in possession; receipt of such rent by a mortgagee for the statutory period will, it seems, bar the mortgagor's right to redeem (o).

Possession of lands must be considered in every case with reference to its peculiar circumstances, the character and value of the property, the suitable and natural mode of using it, and the course of conduct which its proprietor might reasonably be expected to follow with due regard to his own interest (p).

(j) In re Alison, Johnson v. Mounsey, 1879, 11 Ch.D. 284.

(k) Bright v. McMurray, 1882, 1 O.R. 172.

(l) Doe d. Carter v. Barnard, 1849, 13 Q.B. 945, at p. 952; Ded-ford v. Boulton, 1878, 25 Gr. 561.

(m) Ward v. Carttar, 1865, L.R. 1 Eq. 29.

(n) See Sec. 277, supra.

(o) Ward v. Carttar, 1865, L.R. 1- Eq. 29; Markwick v. Harding-ham, 1880, 15 Ch.D. 339; 19 Halsbury, Laws of England, p. 149, note (1).

(p) Lord Advocate v. Lord Lovat, 1886, 5 App. Cas. 273, at p. 288; Kirby v. Cowderoy, [1912] A.C. 599; Martin v. Evans, 1917, 39 O.L.R. 479, 37 D.L.R. 376.

Under a deed of conveyance, intended to be security only, of wild land in British Columbia without value, the grantee for over twenty years (q) before the grantor's suit for redemption performed the only act of possession of which the land appeared to be susceptible, namely, with the grantor's acquiescence he paid all the taxes upon it, and the grantor made no payment of principal or interest and had washed his hands of all connection with the property. It was held that the suit for redemption was barred (r).

It has been held that the possession of the mortgagee under the statute means actual adverse possession and that a mere constructive possession of vacant lands by reason of the default of the mortgagor will not operate to bar the mortgagor's right to redeem (s).