which the right of suit first accrued. Such is the position of the case in hand, and therefore so far as the bill seeks to affect the possession of or the title to the land in question, or to make absolute that forfeiture which originated in the first default, the plaintiff should be refused any relief. The decree should be affirmed, with costs.

FERGUSON, J.-The mortgage or document on which the suit is brought is made by the defendants, who are husband and wife. The suit is one of foreclosure, and also an action on the covenant contained in the mortgage. The money was payable quarterly. The last payment was made in the month of November, 1868, and the first default was made in the month of February, 1869. This suit was commenced on the 29th day of October, A.D. 1879, more than ten years after the date of the first default. The learned Judge, before whom the cause was heard, decided that the right of foreclosure was barred by the Statute of Limitations, but he gave effect to the covenant, and made an order upon the defendant, the husband, to pay the money, and directed, as I understand, a reference as to the separate estate which the defendant, the wife, had at the date of the mortgage, and which she still retained at the time of the hearing of the cause, and ordered payment out of such estate or such remainder thereof.

It was argued before us that a foreclosure suit is not an action or suit for the recovery of land, and that the decision of the learned Judge was not correct in holding that the Statute of Limitations applied so as to bar the right to foreclose. I think it is too late now to argue that a foreclosure suit is not a suit for the recovery of land. The judgment (in appeal) in the suit Heath v. Pugh, L. R. 6 Q. B. Div. 345, referring to and adopting the doctrine of Wrixon v. Vize, 3 Dr. & War. 104 and referring also to many other cases on the subject, as well as the case Harlock v. Ashberry, L. R. 18 Ch. Div. at p. 233, and the same case in appeal, W. N. 18 February, 1882, seem to me to settle the point, at all events so far as this Court

is concerned. There are other cases deciding in the same way, but I do not think it necessary to refer to them here. Then the suit, so far as it is a suit for foreclosure, being one for the recovery of land, and the first default and accrual of the right of action being ten years and eight months before the commencement of the suit, I think it plain that the 4th sec. of ch. 108 of the R. S. O. applies, and the right of foreclosure is barred.

I think the defendant the husband is liable upon the covenant that he executed, and that the order made in respect of the estate of the defendant the wife is, under the authorities, the proper order. I am therefore of the opinion that the decree should be affirmed.

[CHANCERY DIVISION.]

MUNSIE V. LINDSAY.

Will-Devise to attesting witness-Election by heir-26 Geo. II., ch. 6, sect. 1.

Where, by a will, land is devised to an attesting witness, there is an intestacy as to this devise by virtue of the 26 Geo. II. ch. 6, sect. 1, and the heir is not bound to elect as between this land and a legacy bequeathed to him by the will.

In this action the plaintiff, William Munsie, Junior, set up in his statement of claim that his father, William Munsie, who died in August, 1854, by his will left a certain lot of land to his wife for life, and after her death to his son Robert Munsie, charged with certain legacies; but that the said Robert Munsie was one of the attesting witnesses to the said will, by reason of which the said bequest to him was invalid; and claimed a declaration that the testator died intestate as to the said lands, and that on the death of the widow the heirs were entitled, and also an account of rents and profits, and a partition. among the parties entitled to the said lands.

The defendant, Lindsay, in his statement of defence set up an assignment to himself, for value, of the said land in fee simple from one James Munsie, to whom the said Robert Munsie had by deed duly executed conveyed the said land in fee simple; and that the said James Munsie had paid the legacies charged on the said land, and that he, the said defendant, had made valuable improvements; and he claimed that as to any portion to which the plaintiff should establish a title, he, the said defendant, was entitled to have the same charged with a proportion of the legacies paid, and of the value of the improvements which were made under a bona fide mistake of title.

The above statements were duly proved, and it also appeared that the widow had released her life interest to James Munsie by deed executed previously to the assignment to the defendant William Lindsay.

The testator by his said will also bequeathed a legacy

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.