(j) Hobart v. Abbot, 1731, 2 P. Wms. 643.

(k) In re Burrell, Burrell v. Smith, 1869, L.R. 7 Eq. 399; Silver-thorn v.Glazebrook, 1899, 30 O.R. 408.

(l) Peto v. Hammond, 1860, 29 Beav. 91; Buckley v. Wilson, 1861, 8 Gr. 566.

(m) Griffith v. Pound, 1890, 45 Ch.D. 553.

(n) Walker v. Dickson, 1892, 20 O.A.R. 96. The object of adding the intermediate purchaser in this case was to obtain a judgment declaring such purchaser liable personally to pay the mortgage debt by reason of his alleged obligation to indemnify the person from whom he had purchased. As to such obligation, see chapter 14, Transferee of the Equity of Redemption, Sec. 134.

(c) The lessee of the mortgagor.

If the owner of land after making the mortgage leases the land without the authority of the mortgagee, the lease is subject to the mortgage. The lessee is a purchaser of the equity of redemption pro tanto and is entitled to redeem. He is therefore a necessary party to an action for foreclosure or sale (o). It has been held that even after final order of foreclosure a tenant for years who was not made a defendant might open up the foreclosure and redeem, unless the mortgagee would confirm his tenancy (p).

It is necessary to make the tenant a party no matter how long or how short his term may be, if the mortgagee desires to affect him by the proceedings and to compel him to give up possession of the mortgaged lands. It is not unusual, however, for the mortgagee to refrain from making the tenant a party and to assume the risk as to getting possession and as to the possibility of the tenant's subsequently desiring to redeem-a remote possibility unless the lease is a valuable one.

If the lease was made prior to the mortgage or subsequent to the mortgage with the mortgagee's authority, the lessee's interest is paramount to the mortgage and the lessee will not be a proper or necessary party unless the mortgagee seeks some relief against him (q).

(o) Tarn v. Turner, 1888, 39 Ch.D. 456.

(p) Martin v. Miles, 1883, 5 O.R. 404. A tenant, like any other partial owner of the equity, who redeems; would take the land subject to the claims of the other persons interested in the equity of rcdempiion. See chapter 25, Action for Redemption, Sec. 256.

(q) For instance if the mortgagee claimed priority over the lease under the provisions of the Registry Act, R.S.O. 1914, c. 124, s. 71 (2); see chapter 8, Sec. 72. As to the right of the mortgagee to demand payment of the rent by the prior lessee, see chapter 15, Lessee of Mortgaged Land, Sec. 142.

(d) The personal representatives of a deceased mortgagor or owner of the equity of redemption who if alive would have been a necessary party.

In Ontario under the Devolution of Estates Act the real and personal property of a deceased person devolves upon and becomes vested in his personal representative, but in the case of real property not disposed of, conveyed to or distributed among the persons beneficially entitled within three years, the estate or interest of the deceased person becomes thereafter vested in the persons beneficially entitled, subject to the registration by the personal representatives of a caution or successive cautions (r). By virtue of the statute and of rule 74 (s), so long as the interest of the deceased person is vested in his personal representatives, an action for foreclosure or sale is properly constituted if it is brought against the personal representatives, and the persons beneficially- interested are not generally necessary or proper parties (t), but under rule 74 the court may at any time order any of the beneficiaries to be made parties in addition to, or in lieu of, previous parties.

Before the passing of the Devolution of Estates Act, upon a mortgagor dying intestate, proceedings to foreclose must have been against the heirs at law, and if any of them were infants the invariable custom of the court was to determine whether foreclosure or sale would be more for the benefit of the infant. Since the passing of the statute a mortgage action may be maintained against the administrator, and if the heirs are adult the administrator sufficiently represents the heirs by virtue of rule 74, but it has been held that if there are infant heirs, they are proper parties to an action for foreclosure or sale and should be made defendants in the first instance. It may be that the record is complete as a matter of title with the general administrator as sole defendant, but the statute was not intended to derogate from the rights of infant beneficiaries and as a matter of procedure they should be made parties (u). Where, however, the mortgagor devised and bequeathed all his real and personal estate to his executors in trust, the latter were held to be the only necessary defendants to an action for foreclosure, although the widow and infant children of the deceased mortgagor were in actual possession of the mortgaged lands (v).

(r) For fuller statement of these provisions, see chapter 13, Persons entitled on Death of the Mortgagee, Sec. 123; cf. chapter 17, Persons entitled on Death of the Mortgagor, Sec. 162.

(s) This rule is quoted in Sec. 233, supra.

(t) Plenderleith v. Smith, 1905, 10 O.L.R. 188. In this case the mortgagor had died before the 4th day of May, 1891, so that the provision of the statute with regard to the vesting of the estate in the persons beneficially entitled was not applicable.

A mortgagor having died intestate leaving a husband and infant children and the mortgagee having brought an action against them for foreclosure before the lapse of twelve months (w), it was held that the plaintiff was entitled after the lapse of the period to a judgment for foreclosure without having a personal representative of the mortgagor before the court, no administrator having been appointed and no caution having been registered under the statute (x).

It is now provided by the Devolution of Estates Act (y) as follows: