After the decision in Teevan v. Smith (u) the English statute of 1881 (v) was amended by the addition of the provision which is now contained in R.S.O. 1914, c. 112, s. 3. sub-.s. 2, as follows:

(2) The right of the mortgagor to require an assignment shall belong to and be capable of being enforced by each incumbrancer or by the mortgagor, notwithstanding any intermediate incumbrance; but a requisition of an incumbrancer shall prevail over that of the mortgagor, and as between incumbrancers a requisition of a prior incumbrancer shall prevail over that of a subsequent incumbrancer.

It has been said that the amendment overruled the construction placed upon sub-s. 1 in Teevan v. Smith, namely, that the mortgagee could be required to transfer the mortgage only at the direction of the person who was entitled to a reconveyance, that is, the first subsequent encumbrancer (w). This statement is, however, susceptible of being misunderstood, unless it is qualified by reference to the opinions expressed that the effect of the amendment is to confirm the decision in Teevan v. Smith so far as it was there held that the word "mortgagor" in the principal act means the person who has, in priority to all other persons interested, the right to call upon the first mortgagee to transfer the mortgage, and to leave unaffected that decision so far as it lays down the rule that the consent of a mesne encumbrancer is still necessary to enable a subsequent encumbrancer or the mortgagor, as the case may be, to require a transfer instead of a reconveyance (x). It is said also that the amending act throws upon the mortgagee the burden, to which he was not previously subject, of determining which among several encumbrancers who may require an assignment is entitled to priority (y), and that the mortgagee cannot safely transfer the mortgage to the mortgagor or his nominee without the consent of puisne encumbrancers of whose charges he has notice (z).

(u) 1882, 20 Ch.D. 724. See Sec. 192, supra.

(v) I.e., sub-ss. 1 and 3 of R.S.O. 1914, c. 112, s. 3. See Sec. 192, supra. (w) 21 Halsbury, Laws of England, p. 170, note (d).

Where the plaintiffs in a foreclosure action held first, second and fourth encumbrances and a jointress was entitled as third encumbrancer, a special decree was made providing, inter alia, that in the event of the jointress redeeming the plaintiffs, the plaintiffs as fourth encumbrancers should have a further period within which to redeem and that upon their paying to the jointress all that should be found due upon the taking of the account she should convey and assign to them subject to the jointure, liberty being reserved to apply subsequently to have the conveyance and assignment made to trustees (a).