10.- (1) Where there is no legal personal representative of a deceased mortgagor of freehold property it shall be sufficient for the purposes of an action for the foreclosure of the equity of redemption in, or for the sale of, such property that the person beneficially entitled under the last will and testament, if any, of the deceased mortgagor, or under the provisions of this Act, to such property or the proceeds thereof be made defendant to such action, and it shall not be necessary that a legal personal representative of the deceased mortgagor be appointed or be made a defendant thereto unless it shall be otherwise ordered by the Court in which the action is brought or by a Judge thereof; but if during the pendency of such action, the equity of redemption devolves upon and becomes vested in a legal personal representative of the mortgagor he shall be made a party to the action.

(u) Keen v. Codd, 1891, 14 O.P.R. 182.

(v) Emerson v. Humphries, 1892, 15 O.P.R. 84.

(w) Under the Devolution of Estates Act as it then stood, real property not disposed of, etc., became vested in the persons beneficially entitled after the lapse of twelve months, subject to the registration of a caution or cautions. The period was in 1902 extended to three years.

(x) Ramus v. Dow, 1893, 15 O.P R. 219.

(2) In subsection 1 the word "mortgagor" shall include the assignee of a mortgagor and any person entitled to or interested in the equity of redemption.

An action for foreclosure was begun in 1898, and the usual judgment was entered on the 30th of January, 1899. One of the mortgagors defendants died on the 20th of June,

1899, an infant, unmarried and intestate. On the 2nd of May,

1900, a final order of foreclosure was granted, no notice being taken of the infant's death, and he and not his personal representatives or those claiming under him being declared to be foreclosed. It was held that the final order was irregular and was not binding on the infant's mother who was not a party to the action, and in whom an undivided interest in her son's estate became vested at the expiration of a year from his death, and that she was entitled to redeem and to be added as a defendant, upon her own application. An order was made adding her as a defendant, and directing that the action be carried on between the plaintiff and the continuing defendants and new defendant, and that it should stand in the same plight and condition in which it was at the time of the infant's death. The effect was to require a new account to be taken and a new day to be fixed for redemption, of which all the defendants were entitled to avail themselves (z).

(y) R.S.O. 1914, c. 119, s. 10. The original amendment passed in 1906 did not in terms apply to an action for sale, but the statute was changed in this respect by 10 E. 7, c. 56, s. 10.

(z) Kennedy v. Foxwell, 1906, 11 O.L.R. 389.

A trustee will not sufficiently represent the cestwis que trust as defendant in a foreclosure action unless he has funds in hand sufficient to enable him to redeem; for all persons must be brought before the court who are interested in the equity of redemption and who may be able and willing to redeem (a). If a trustee becomes bankrupt he cannot properly represent his beneficiaries in a foreclosure action, and the beneficiaries should be made parties (b), but if a trustee unnecessarily makes the cestuis que trust parties he may be ordered to pay their costs (c).

(e) The wife or the husband of the mortgagor.

In Ontario prior to the 11th March, 1879, a widow had no claim to dower in an equity of redemption unless her husband died beneficially entitled (d), and she was not a necessary or proper party to an action for foreclosure or sale, whether the land was already subject to mortgage when her husband acquired it or whether she had joined to bar her dower in a mortgage executed by him (e).

Since that date a widow is not entitled to dower in an equity of redemption acquired by her husband and disposed of by him in his lifetime, and she is therefore not a proper or necessary party to an action for foreclosure or sale (f). If however her husband acquires the legal estate and she joins to bar dower in a mortgage executed by him since that date, she is entitled to dower in the equity of redemption, and he cannot transfer the equity of redemption free from dower (g). Unless and until her husband dies entitled to the equity of redemption, she has, however, merely an inchoate right to dower, and, strictly speaking, she is not a necessary party to an action for foreclosure or sale, if the proceedings are brought to a conclusion in her husband's lifetime (h). But it has been held that where a wife applies after judgment and report and before final order of foreclosure she is entitled to be added as a party and to redeem (i). The bar of dower affects the right to dower only so far as is necessary for the protection of the mortgagee, and to the extent that the value of the land represents a surplus over and above the mortgagee's claim, the wife's claim to dower attaches (j). In the case of a sale the amount of the surplus, if any, is definitely ascertained, but in the case of foreclosure simply the existence or amount of the surplus cannot be ascertained. It has therefore been held that proper practice requires that she should be a party to an action for foreclosure in order that she may either redeem or protect her interests by asking for a sale; if she does neither there would be no question as to her dower being effectually extinguished (k). In view of the uncertain result of the decisions it is safer to make her a defendant (l).

(a) Goldsmid v. Stonehewer, 1852, 9 Hare, App. xxxviii; Mills v. Jennings, 1880, 13 Ch.D. 639, 6 App. Cas. 698. (b) Francis v. Harrison, 1889, 43 Ch.D. 183.

(c) In re Cooper, Cooper v. Vesey, 1882, 20 Ch.D. 611, C.A.

(d) See chapter 18, Dower and Curtesy in Mortgaged Land, Sec. 172. Prior to 1834 a widow had no claim to dower in an equity of redemption even if her husband died beneficially entitled.

(e) Moffatt v. Thomson, 1851, 3 Gr. Ill; Davidson v. Boyes, 1873, 6 O.P.R. 27.

(f) Parker v. Willett, 1889, 22 N.S.R. 83.

(g) See chapter 18, Sec. 173.

(h) Casner v. Haight, 1884, 6 O.R. 451. In this case the wife brought an action for redemption after the final order of foreclosure against her husband, and on demurrer it was held that she was not a necessary party to the foreclosure action and was not entitled to redeem.

(i) Blong v. Fitzgerald, 1893, 15 O.P.R. 467.

(j) The amount of dower in the surplus is calculated upon the whole value of the land. See chapter 18, Sec. 174.

(k) Ayerst v. McClean, 1890, 14 O.P.R. 15.

(l) Holmested, Ontario Judicature Act, 4th ed., 1086; Standard Realty Co. v. Nicholson, 1911, 24 O.L.R. 46, at p. 51.

During the existence of a mortgage in which the mortgagor's wife has joined to bar dower, the wife's sole remedy is to redeem the mortgage, and she is not entitled to assert any claim for dower against the holder of the mortgage (m).

When the mortgagor assigns his equity of redemption the wife of the person to whom the assignment is made is not a proper party to an action by the mortgagee for foreclosure (n), but it would seem that if the owner of the equity of redemption should die after judgment but before final order of foreclosure, his wife would have a right to redeem. In that case she is a proper party to the action and a new day should be named to allow her to redeem (o).

It has been held that if a married woman is entitled to an equity of redemption in land, there is such seisin in her as will entitle her husband to a tenancy by the curtesy upon her death (p), provided the other requisites for such tenancy exist (q). A married woman may, however, defeat her husband's estate by the curtesy by conveyance inter vivos or by her will (r), and therefore it would seem that her husband is not a necessary party to an action for foreclosure or sale of land mortgaged by her if the proceedings are brought to a conclusion so as to extinguish the equity of redemption in her lifetime.

(f) A surety for the mortgagor.

A mere surety by covenant who has paid nothing is not a necessary party to an action for foreclosure, but a surety who has joined as co-mortgagor with the principal debtor is a necessary party (s). A wife who joins as co-mortgagor, and not merely to bar dower, in a mortgage by her husband for a debt of his, is a surety and entitled to redeem (t).

(m) Thompson v. Thompson, 1904, 37 N.S.R. 242.

(n) Monk v. Benjamin, 1890, 13 O.P.R. 356.

(o) Monk v. Benjamin, supra.

(p) Casborne v. Scarfe, 1737, 1 Atk. 603, 2 W. & T. L.C. Eq. 6. As to the dictum in this case that an equity of redemption is an estate in the land, see chapter 3, Legal Mortgage in Equity, Sec. 28.

(q) See chapter 18, Dower and Curtesy in Mortgaged Land, Sec. 176.

(r) See the statutes quoted in Sec. 176, supra.

Where there is a surety for the payment of the mortagge debt in default of payment by the mortgagor, it is desirable to join the surety as a defendant in the action against the mortgagor, because when judgment is recovered against the principal the right of action on the covenant is merged in the judgment and subsequent accruing interest may not be otherwise recoverable against the surety (u).

Where a surety by the terms of his agreement has become liable for the deficiency on a mortgage, the mortgagee cannot require him to pay until the security has been realized and the deficiency ascertained (v).