So where the plaintiff claimed that an execution against the mortgagor which was prior in time to the plaintiff's mortgage should be postponed, it was held that the execution creditor must be made a defendant by writ and could not be added in the master's office, but the plaintiff was allowed to have his judgment set aside, add the execution creditor as a party, and amend so as to raise the question of priority (a).

A railway company took possession of certain lands and proceeded with an arbitration with the owners as to their value. The lands were subject to a mortgage to the plaintiffs, who received no notice of and took no part in the arbitration proceedings, and gave no consent to the taking of possession. An award was made but was not taken up by the railway company Or the owners. In an action by the plaintiffs against the owners and the railway company for foreclosure it was held that the latter was a proper party (b).

(x) Hopper v. Harrison, 1880, 28 Gr. 22; Reinhart v. Shutt, 1888, 15 O.R. 325.

(y) Moore v. Hobson, 1868, 14 Gr. 703; Rogers v. Lewis, 1866, 12 Gr. 257.

(z) Glass v. Freckleton, 1864, 10 Gr. 470; Darling v. Wilson, 1869, 16 Gr. 255.

(a) Lally v. Longhurst, 1888, 12 O.P.R. 510, following Glass v. Freckleton, 1864, 10 Gr. 470.

If the mortgagee seeks to obtain possession from a person who is in possession of the mortgaged land (not being a tenant under a lease made by the mortgagor subsequent to the mortgage without the mortgagor's consent (c)), such person in possession would be a proper party to an action for foreclosure or sale.

With the exceptions already noted, all persons who have any interest in the ultimate (d) equity of redemption must be made defendants by writ, and they are necessary parties in this sense, that if the mortgagee (who presumably desires to to acquire an absolute title free from any equity of redemption whatsoever) omits to make defendants any persons interested in the equity of redemption such persons will not be affected by the proceedings and to that extent the foreclosure will be inoperative. The persons interested in the equity of redemption may be classified as follows:

(a) The mortgagor, if he still retains any interest in the equity of redemption.

If a mortgagor absolutely assigns the equity of redemption he thereby loses his right to redeem; and in that case he is not a necessary party to an action for foreclosure or sale. But it is usual and advisable to make the mortgagor a party, although he may have disposed of the equity of rdemption. If any question as to the validity of the mortgage should arise in the action it woud be necessary for the proper disposition of such question that the mortgagor should be before the court. The Ontario rules of practice and the forms provided by the rules for mortgage proceedings comtemplate making the mortgagor a defendant for the purpose of enforcing against him the claim on the covenant to pay the mortgage debt (e).

(b) Scottish American Investment Co. v. Prittie, 1893, 20 O.A.R. 398.

(c) A tenant in the circumstances mentioned would be a necessary party, being a partial owner of the equity of redemption. See below.

(d) As pointed out in chapter 14, Transferee of the Equity of Redemption, Sec. 131, a mortgagor who makes a second mortgage no longer has any equity of redemption in the first mortgage. He is however' interested in the ultimate equity of redemption.

If a mortgagor has assigned his equity of redemption and the mortgagee makes him a party for the purpose of recovering on the covenant to pay the mortgage debt, the mortgagor's right to redeem revives (f).

In England a bankrupt mortgagor is not a necessary or proper party to an action for foreclosure even although the trustee in bankruptcy disclaims all interest in the equity of redemption (g); for during his bankruptcy the mortgagor has no estate or interest in the mortgaged property even although the trustee disclaims (h). In Ontario an assignment for the benefit of creditors under the Assignments and Preferences Act (i) vests in the assignee any equity of redemption belonging at the time of the assignment to the assignor. As, however, the personal liability of the mortgagor for the mortgage debt continues notwithstanding the assignment for the benefit of creditors, the mortgagor is a proper party if payment of the mortgage debt is sought against him. The assignment does not. differ in this respect from any other transfer by the mortgagor of his equity of redemption.

(e) See, e.g., rule 460 and form of endorsement on the writ of summons in Sec. 232, supra.

(f) Kinnaird v. Trollope, 1888, 39 Ch.D. 636.

(g) Lloyd v. Lander, 1821, 5 Madd. 282; Pannell v. Hurley, 1845, 2 Coll. 241; Kerrick v. Saffery, 1835, 7 Sim. 317; Collins v. Shirley, 1830, 1 R. & My. 638.

(h) In re Mercer and Moore, 1880, 14 Ch.D. 287.

(i) R.S.O. 1914, c. 134, s. 9.

Where a derivative mortgagee brings an action to foreclose the original mortgage, the original mortgagee or his personal representatives must be made parties as having a right to redeem the sub-mortgage. But if the original mortgagee's interest is wholly gone he is not a necessary party (j). And if the action relates only to the derivative mortgage the original mortgagor is not a necessary party (k).

(b) The present owner of the equity of redemption by assignment from the mortgagor or from his transferee.

Where the mortgaged lands have been sold to several persons, the purchasers, however numerous, must be made parties to the action. The mortgagee is entitled to insist that the whole of the mortgaged estate shall be redeemed together (I). Where a company purchased land subject to a mortgage and subsequently issued debentures charging the property, it was held that all the debenture holders must be made parties to the action (m).

It is not necessary or proper for the plaintiff in a foreclosure action to join as defendant the intermediate owner of the equity of redemption, that is to say, a person who at one time owned the equity of redemption but who has conveyed it away prior to the action (n).