(g) Canadian Bank of Commerce v. Forbes, 1885, 10 O.P.R. 442

(h) See chapter 13, Persons entitled on Death of the Mortgagee Sec. Sec. 122, 123.

(i) Crosbie v. Fenn, 1879, 26 Gr. 283.

(j) Nichol v. Allenby, 1889, 17 O.R. 275.

It is provided in Ontario by the Judicature Act, R.S.O. 1914, c. 51, s. 36, that the institution of an action or the taking of a proceeding, in which any title to or interest in land is brought in question, shall not be deemed notice of the action or proceeding to any person not a party to it until a certificate of lis pendens is registered under the Registry Act or caution is registered under the Land Titles Act, but this provision does not apply to any action or proceeding for foreclosure or sale upon a registered mortgage.

The general rule is pendente lite nihil innovetur, and persons dealing with the lands which are the subject of the action take subject to the rights of the parties as declared in the action. Persons acquiring interests pendente lite need not be added as parties, and though not added are bound by the proceedings. Thus in an action by a mortgagee for foreclosure or sale a person who pendente lite takes a subsequent mortgage or other encumbrance on the lands need not be made a party (k). And where a judgment has been rcovered against the mortgagor pending the action it is not necessary to make the judgment creditor a party (l).

Where in a foreclosure action a mortgagee had obtained a foreclosure order nisi, and subsequently a judgment creditor in another action, who had obtained the appointment of a receiver by way of equitable execution of the property of the mortgagor, applied to be added as a defendant to the foreclosure action, and asked that the period for redemption should be extended, the court made an order adding the applicant as a defendant but refused to extend the time for redemption, the applicant being bound to take his interest in the equity of redemption in the state in which he found it (m).

(k) Robson v. Argue, 1878, 25 Gr. 407.

(l) Wallbridge v. Martin, 1868, 2 Chy. Ch. (Ont.) 275.

(m) In re Parbola, Blackburn v. Parbola, [1909] 2 Ch. 437; cf. Gibson v. Nelson, 1901, 2 O.L.R. 500, at p. 505, 35 Can. S.C.R. 181; Wasson v. Harker, 1912, 5 S.L.R. 364, 8 D.L.R. 88.

The general rule is that all persons interested in the ultimate equity of redemption, other than persons having subsequent liens, charges or encumbrances, should be made defendants by writ, but in Ontario under rule 490 the court may order persons who are interested in the equity of redemption other than those who are already parties by writ to be made parties in the master's office (n).

In addition to the notice to be served upon subsequent encumbrancers added in the master's office under rule 470 above mentioned, an appointment must be served upon subsequent encumbrancers who are already parties and a notice must be given to all the defendants by writ, as required by rules 403 and 472, as follows:

403. Unless otherwise directed by the master, notice of the first proceeding before him shall be given to every party affected by or interested in the enquiry though any such party may not have appeared or pleaded in the action.

472. The master before he proceeds to hear and determine shall require an appointment (form no. 44) to be served upon all persons made parties before the judgment appearing to have any lien, charge or encumbrance upon the lands in question, subject to the plaintiff's mortgage, and shall in the notice to the defendant by writ, required by rule 403, state the names and nature of the claims of those so notified, and of those added under the provisions of rule 470 as appearing to have a lien, charge or encumbrance upon the said lands, and such notice may be in the form 45.

Form 44, referred to in rule 472, is as follows:

Notice to parties by writ having encumbrances. (Court and Cause).

Having been directed by the judgment in this action to enquire whether any person other than the plaintiff has any lien, charge or encumbrance upon the lands in question in this action subsequent to the plaintiff's claim, and to take an account of the amount due to the plaintiff and any such person. And it having been made to appear that you may have some lien, charge or encumbrance thereon you are hereby notified that I have appointed day, the day of next at my chambers in the Court House at at o'clock to proceed with the said enquiry and to determine the amount of the claim of the plaintiff.

(n) See Sec. 234, supra.

and of such encumbrancers as may come in and prove their claims before me.

If you fail to attend upon such appointment, and to prove your claim, the reference may proceed in your absence, and you will receive no further notice of the proceedings in this action, and you will be treated as disclaiming any lien, charge or encumbrance upon the said lands, and will stand foreclosed from any such claim. Dated this day of 19 W. L., Master.

Form 45, referred to in rule 472, is as follows:

Notice to all original defendants. (Court and Cause.) Having been directed by the judgment in this action to enquire whether any person other than the plaintiff has any lien, charge or encumbrance upon the lands in question in this action subject to the plaintiff's claim thereon.

You are hereby notified that it has been made to appear to me that the persons named in the schedule hereto may have some lien, charge or encumbrance thereon, and I have, therefore, caused such of them as are not already parties thereto to be added as parties in my office, and have appointed day, the day of next in my chambers in the Court House at at o'clock, to enquire and determine whether the said parties have any such lien, charge or encumbrance, and to fix and ascertain the amount thereof, and the amount of the plaintiff's claim upon his security.

If you do not then and there attend, the reference will be proceeded with in your absence, and you will reecive no further notice of the proceedings in this action. Dated this day of 19

W. L., Master. Schedule. Encumbrancer. E.g.

Nature of Claim. A. B. Mortgage dated.

C. D. Execution.

E. F. Mechanic's lien.

Rule 403 forms an exception to rule 35 by which it is provided:

35. Except where otherwise provided or otherwise ordered a defendant who fails to appear shall not be entitled to notice of any subsequent proceedings in the action.

Under rule 200, if a defendant served with a writ of summons has not appeared thereto, all documents not requiring personal service shall, unless the court otherwise directs, be deemed to be sufficiently served by posting up a copy in the office in which the proceedings are being carried on. As it appears to be doubtful whether this rule applies to any proceedings after judgment (o), it would be safer to serve the notice required by rule 403 personally unless the master otherwise directs. The master will probably not direct service by posting up if the defendant appears to have some substantial interest.