year. I think the parties being at arm's length so soon after the making of the alleged agreement gives great force to the argument founded on the laches of the plaintiff.

I am therefore of opinion that the plaintiff is not entitled to the relief he claims, because the agreement is not sufficient within the Statute of Frauds, and the action must therefore be dismissed, with costs.

NOTE. See Marshall v. Birridye, L. R. 19 Chy. D. 233.

[CHANCERY DIVISION.]

FLETCHER V. RODDEN.

Mortgage--Foreclosure-Recovery of land—Statute of Limitations.

The remedy by way of foreclosure or sale in mortgage suits is a proceeding to recover lands within the meaning of R. S. O. ch. 108, sec. 4. Therefore when a suit to foreclose a mortgage was commenced ten years and eight months after the date of the default in payment, and the plaintiff claimed payment of the mortgage debt, possession, and foreclosure.

Held, that the only relief to which the plaintiff was entitled, was judgment upon the covenant for payment.

REHEARING before the full Court of cause heard by Proudfoot, J., at the Lindsay Sittings.

The action was brought by John Fletcher, the assignee of a mortgage made by Jane Eliza Rodden and John Charles Rodden to one William Rodden, for the recovery of the amount due under the mortgage, for foreclosure and delivering up of possession of the mortgaged lands. The plaintiff in his bill alleged he had never been in possession.

The mortgage in question was dated 14th April, 1868, and was made" for securing the payment of the interest (at the rate of ten per cent per annum) upon one thousand dollars, being the sum of $100 per annum from the date of the said indenture of mortgage and from thenceforward during the lifetime of one Veronica Rodden, and which

said interest was to be paid quarterly on the first days of the months of May, August, November, and February, after the date of the said indenture of mortgage, and until the death of the said Veronica Rodden." Veronica Rodden died 6th May, 1879, the last payment on the mortgage was made in the month of November, 1868, and the first default was made in February, 1879.

Plaintiffs bill was filed 13th October, 1869.

The defendants in their answer, besides stating their defence on the merits, which it is unnecessary to set forth, claimed the benefit of R. S. O., ch. 108 and all other Statutes of Limitations in bar to the relief sought by the plaintiff.

The learned Judge who tried the case held that the plaintiff was not entitled to foreclosure, the right to which had been barred by the statute, foreclosure being a suit for the recovery of land.

C. H. Richie, for plaintiff. The sole question is one of the Statute of Limitations. The last payment was in November, 1868, and the bill was filed 29th October, 1879. All the instalments that accrued due within ten years are moneys that can yet be charged on the lands, and the plaintiff is entitled to foreclosure as to all moneys falling due since the November payment of 1868. The pay

ments are not interest and do not come within R. S. O. ch. 108, sec. 17. It will be contended this comes under the 4th section of the Act, but mortgages are dealt with in another part of the Act, under the heading "Mortgages." Foreclosure is not a suit to recover land: Darby on Limitations, p. 370.

Moss, Q. C. This action is one to recover land, and the right of action accrued on the first default: Harlock v. Ashberry, L. R. 18 Chy. D. 233. The only disability clauses are those respecting the recovery of land or rent, and if the disability clauses apply to foreclosure it shews that the action of foreclosure is one to recover land: Wrixon v. Vize, 3 Dr. & War. 104. Heath v. Pugh, L. R. 6 Q. B. D.

345, affirms the view that the action is one to recover land, Lord Selborne saying, when the plaintiff foreclosed he recovered the land. The learned counsel also referred to Leith, 2nd ed. 445-446, sec. 13 and 22, in the note of the author. In Jones on Mortgage, sec. 1210, it is laid down that the time begins to run from the first breach; he also referred to Crone v. Crone, 26 Gr. 459, and Banning on Limitations, 150. In 1868, Jane Eliza Rodden was a married woman, and was not then in a position to charge her estate, and her covenant is a nullity: Royal Canadian Bank v. Mitchell, 14 Gr. 412; Lawson v. Laidlaw, 3 App. R. 77; Boustead v. Whitmore, 22 Gr. 222; Clark v. Creighton, 45 U. C. R. 514; Standard Bank v. Boulton, 3 App. R. 93; Pike v. Fitzgibbon, L. R. 17 Chy. D. 454; Robinson v. Pickering, L. R. 16 Chy. D. 660; Smith v. Lucas, L. R. 18 Chy. D. 545. Then, unless the plaintiff can recover on the covenant this must be an action to recover land. As a direct charge upon the land the action is barred and the plaintiff cannot fall back on the covenant. No personal order should therefore have been made against the married woman: C. Law Times 730, 5th Dec. 81.

C. H. Richie, in reply. At the time of the making of the mortgage the wife had the $1,000, and it is not necessary for her to have separate estate at the time of judgment.

March 11, 1882. BOYD, C.-The mortgage in question herein dated 14th April, 1868, provides for the payment of $100 per annum during the life of one Veronica Rodden, to be paid quarterly on the 1st day of May, August, November, and February, and in default the mortgagee had the right to enter, dispossess the mortgagors, and sell. Veronica died in May, 1879. The last payment made was the quarterly payment which fell due in November, 1868. The bill was filed on the 30th October, 1879, to enforce the arrears: praying payment forthwith under the covenants to pay contained in the mortgage, and praying also foreclosure and delivery of possession. The question was much discussed as to whether this was a suit to recover land, or one to

recover money charged on land: it being argued by the plaintiff that he had the right to go back ten years from the filing of the bill, under R. S. O. ch. 108, sec. 23, and charge that much on the land; against which it was urged by the defendant that sec. 4 of the Act was applicable, and that as default was made and the right of suit accrued more than ten years before the bill was filed there could be no recovery as against the land.

The learned Judge who tried the cause took the latter view, and upon a consideration of the cases which have been decided both before and after Barwick v. Barwick, 21 Gr. 39, I think a great preponderance of authority supports his conclusion. It is unquestionable that the right of action or suit under the mortgage first arose upon the failure to pay the instalment which fell due on 1st February, 1869. There was then a forfeiture for non-payment, which entitled the plaintiff to enforce the security as to what was overdue. The ordinary rule of equity is, that when a plaintiff properly comes into the Court to enforce presently part of his claim he may and should seek the assistance of the Court to work out in the one suit his full rights which are accruing due in respect of the same claim. It might not be the case that the Court would, upon the first default, have decreed a foreclosure for the whole amount secured, by referring it to the Master to compute. what would be a proper sum to allow, having regard to the probable duration of the life of Veronica Rodden; but a decree such as is granted in cases of annuities charged upon land would unquestionably have been made, under which practically there would have been a realization of the land for the purpose of satisfying the arrears and answering the accruing payments under the mortgage. See forms of such decrees in Seton, at p. 1562, 4th ed., providing in one case for sale of a sufficient part of the land to satisfy the arrears, and a setting apart of sufficient land to secure the growing payments; and in the other case providing for a sale of the entire corpus of the land. The right to obtain this relief, and the present right to lay hold of the

land for the satisfaction of the moneys secured by the mortgage, first arose more than ten years before the filing of this bill, whether the case falls within the 4th or the 23rd section of the Act. So that quacunque via I incline to think the decree is right. But, looking at the course of decision, it is preferrable to hold that the remedy by way of foreclosure or sale in mortgage cases is a proceeding to "recover the land" within the meaning of these words, as used in the Statute of Limitations.

In 1839, Shadwell, V. C., held in Dearman v. Wyche, 9 Sim. 575, that a bill of foreclosure was in substance a suit. in equity for the recovery of money. In 1843, Wigram V. C., expressed an opinion to the same effect in Du Vigier v. Lee, 2 Hare 326. (It is to be noted that the decision in this was overruled in Hunter v. Nockolds, 1 McN. & G. 641, Seton, p. 1056.) In 1853, Romilly, M. R., expresses himself somewhat equivocally in Sinclair v. Jackson, 17 Beav. at p. 412, thus: "A suit to foreclose is a suit to recover money within 3 & 4 Wm. IV. ch. 27, sec. 42, which enacts that no arrears of interest shall be recoverable but within six years. Now, strictly, a suit to foreclose is not a suit to recover money, but to exclude a right given to the mortgagor by the rules of the Court." These are the cases relied upon and followed in Barwick v. Barwick, 21 Gr. 39. But the authority of Sir John Romilly is in truth the other way, as will be seen by reference to a later decision not cited to the learned Judge who decided Barwick v. Barwick. In Wilson v. Lady Dunsany, 18 Beav. 293, (1854), the Master of the Rolls says: "A suit for foreclosure is not a suit for the recovery of money, but to bar the equity of redemption in the estate. In such a suit the Court has no jurisdiction to make a decree for the payment of a sum of money," p. 299. He proceeds to discuss the effect of a decree in a mortgage suit in Ireland, where, as may be in our practice, the land is directed to be sold, and considers its effect not to be different; and ends thus: "It is not a decree for the payment of money; and the form of the decree is the same, where there is a personal liability under