of £250 to the plaintiff, William Munsie, which he charged upon certain land left by him to his son Alexander Munsie, one of the defendants.

The action was heard on April 28, 1882, at the Spring Sittings at Toronto.

W. Cassels (Brough with him), for the plaintiff. The plaintiff, though one of the heirs and a legatee under the will, is not put to an election here; Jarman on Wills, 4th ed., p. 447; Sheddon v. Gooderich, 8 Ves. 494; Dewar v. Maitland, L. R. 2 Eq. 839. He is entitled to the improvements: McGregor v. McGregor, 27 Gr. 274. As to the legacies, we do not object to the actual sum paid by James Munsie being charged on the land in Lindsay's favour.

J. Bethune, Q. C. (Barwick with him), for the defendant Lindsay. The will is valid for every purpose except as to the part relating to Robert: 25 Geo. II. ch. 6, sect. 1. The charges are good in the hands of the heirs at law, and should not be confined to the sum which was paid by James Munsie. The point as to election is new, and not covered by any case. The will manifests a clear intention on the testator's part as to his property; he gave to Robert the benefit of the property devised, just as he intended William to have the benefit of the legacy: Noys v. Mordaunt, 1 Wh. & Tud. L. C. 367, 5th ed. The heir at law cannot elect to treat one part as invalid and claim the rest as good; the will must be looked at to see whether this legacy would have been given to the plaintiff if the devise to Robert failed: Kerr v. Wauchope, 1 Bligh 40, and the decision of Lord Kaims therein referred to; Dundas v. Dundas, 2 Dow & Cl. 374; Orrell v. Orrell, L. R. 6 Chy. 302; Dewar v. Maitland, L. R. 2 Eq. 834; Brodie v. Barry, 2 Ves. & B. 127; Warren v. Rudall, 1 John. & Hem. 1. The testator might have annexed it as an express condition, and an implied condition is equally strong here.

W. Cassels, in reply. The Wills Act, R. S. O. ch. 106, sect. 17, makes the devise null and void: Jarman on Wills, 4th ed., p. 447. He also referred to Rice v. George, 20 Gr. 221.

May 10, 1882. BOYD, C.-Since the beginning of this century the law has been treated as settled in the manner in which it is found laid down in the text books, namely, that the doctrine of election is not applicable when real property is assumed to be devised by a will not executed so as to pass it and by the same will a legacy is given to the heir. In such a case the heir may take the legacy without making good the devise in the absence of any express condition to that effect: Williams on Executors, p. 1449, (8th ed.) In 1803 Lord Eldon so explained the law in Sheddon v. Gooderich, 8 Ves. 497, observing that the distinction made between an express and an implied condition if res integra would be questionable. But he thus concludes: "Though, with Lord Kenyon, I think the distinction such as the mind cannot well fasten upon, it is better the law should be certain than that every Judge should speculate upon improvements in it."

In this case the attesting witnesses to the will by which the land in question is assumed to be devised to the testator's son Robert are the same son Robert, and Robert McTavish, the husband of a legatee, whose legacy is charged on the same land. It was conceded that this avoided the will as to the land in question by virtue of 26 Geo. II. ch. 6, sect. 1, by which the will, so far as concerns any beneficial devise to an attesting witness, is rendered in terms "utterly null and void." It is in truth the same as if the testator had died intestate as to this property, and the will cannot be regarded. The plaintiff is entitled to call for a partition of the land, but the shares of the heirs must be onerated with their proportions of the valid charges on the land created by testator. And although some have been obtained by the person under whom Lindsay claims at less than their full value, yet he should be allowed as if the whole had been paid. It is conceded that his permanent improvements are to be allowed as against rents, for which he should account. The usual partition decree in other respects, and each share to bear its own costs.

[CHANCERY DIVISION.]

COURT V. WALSH.

Statute of Limitations—Mortgage—Insolvency.

When the right of action for entry or foreclosure is taken away by virtue of R. S. O. ch. 108, sect. 15, the title itself of the mortgagees is extinguished, and the right of action wholly disappears.

A mortgagee who has suffered the statute to run before he asserts his right of entry cannot, by afterwards getting possession of the property, revive his title to it, but he is in as a mere trespasser.

The insolvency of the mortgagor and the appointment of an assignee in insolvency, does not suspend the running of the Statute of Limitations, so as to preserve the lien and security of the mortgagee on the land mortgaged.

THE bill of complaint in this cause was filed by James Court, assignee of the estate and effects of James O'Neil and Richard O'Neil, insolvents, praying a declaration that all claims, rights, titles, and demands of the defendant, Mary Ann Walsh, into or upon the lands in the pleadings mentioned as comprised in a mortgage executed by the two O'Neils to her, and dated September 9th, 1868, were barred and extinguished by the Statutes of Limitations; and for an order for delivery up by the said defendant of possession of the said land, and for an account of rents and profits.

The plaintiff alleged in his bill that the said defendant had so entered into possession after the making of the assignment in insolvency, without the knowledge and consent of the plaintiff, and after all her claims had been barred as aforesaid.

The evidence of Mary Ann Walsh showed that she had never received any part of the principal money or interest secured by the said mortgage.

The remaining facts of the case are sufficiently set out in the judgment.

The hearing was commenced before the Hon. Mr. Justice Ferguson, at Toronto, on December 11th, 1881, when the case stood over, the plaintiff desiring certain amendments which were allowed.

The case came on again on May 1st, 1882, before Boyd, C., at Toronto, when it was agreed that all the evidence already taken should be used, but no further evidence given.

Maclennan, Q. C., for the plaintiff. No interest was ever paid on the mortgage, and the defendant's title was extinguished before the action of ejectment was begun. The defendant should account for rents: Sanders v. Sanders, L. R. 19 Ch. D. 373.

Bethune, Q. C., for the defendant. Defendant is in possession, and should not be turned out except on equitable terms. The Insolvent Act is to be considered, 38 Vict. c. 16, sects. 83, 84, 85, 86. We have a right to go into insolvency, and put a value on the security and work out our rights there. When insolvency begins there is a trust for all parties, and the law of limitations ceases: Banning on Limitations, p. 264; Re Ross, 2 G. & J. 46; Sterndale v. Hankinson, 1 Sim. 393. The assignee by coming here cannot put us in a worse position then if he went to the Insolvent Court. Foreclosure would not now lie against the assignee. Henderson v. Kerr, 22 Gr. 91, should be overruled now in view of Harlock v. Ashberry, 51 L. J. Ch. 394; S. C. L. R. 18 Ch. D. 229. See also Insolvent Act, sect. 125. Ejectment will not lie by the assignee against the defendant, because the legal estate is in the defendant, who is in possession; Jones on Mortgages, sects. 715, 716, 1205. R. S. O. c. 108. sec. 15, does not apply to mortgage cases, which are provided for in separate sections by themselves. The plaintiff may be able to say that we cannot bring an action, yet we can nevertheless defend against ejectment. The plaintiff has not been in possession, and possession will be attributed to us who have the legal title. Plaintiff may apply for redemption. R. S. O. c. 108, sect. 19, has not deprived him of this right; neither does sect. 22 enable him to get us out of possession. If the possession be changed it should be without prejudice to our rights in the Insolvency forum, and it should be declared that the mort

gage is a valid security for what is due. I also refer to Insolvent Act, sect. 16; and to 40 Vict. c. 41 sect. 21 Form N.

Maclennan, Q. C., in reply. The point to be decided is, whether we have, as we assert, the legal title to this property. R. S. O. c. 108, sect. 15, bars the right and divests the title or extinguishes it; and it applies to all sections of the Act. Both the mortgagor and the mortgagee have the right to take proceedings in Chancery irrespective of the Insolvent Act; and the defendant chose to rely on her security, instead of proving her claim in insolvency. She then brought ejectment against the tenant, and got possession without the knowledge or consent of the plaintiff. Re Ross only applies to the debt, and not to the security. The O'Neils might have sold the equity of redemption before insolvency. Moreover the Dominion Act as to Insolvency cannot interfere with the Provincial Act as to Limitation of Actions; Mahar v. Fraser, 17 C. P. 408. The defendant may still be able to prove for her mortgage debt in insolvency, and I do not object to the decree being without prejudice to such right.

May 10, 1882. BOYD, C.-The mortgage was, in this case, made on the 9th of September, 1868, and provided that the mortgagor should, till default, retain possession. Default in payment was made on 9th September, 1869, and a right of entry then first accrued to the mortgagee. No steps, however, were taken by the mortgagee to obtain possession or otherwise till the 12th September, 1879, when an action of ejectment was brought against the person in possession, who was tenant of a second mortgagee. Possession was subsequently obtained by the mortgagee who is the defendant. The plaintiff is the assignee in insolvency of the mortgagor, who became insolvent on the 8th January,

1877.

Many of the matters discussed in this case have been considered in the case of Fletcher v. Rodden, supra p. 155. Two points were presented for adjudication in the contention

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