As already pointed out any persons partially or jointly interested in the mortgage security who are not plaintiffs in an action for foreclosure must be made defendants.

All persons who are interested in the ultimate equity of redemption must be made defendants, but while it is the ordinary rule of practice that parties to an action should be joined at its inception and that after judgment parties cannot be added (m), some exceptions are made in the case of an action for foreclosure or sale. In the first place, persons having any liens, charges or encumbrances (n) upon the mortgaged property subsequent to the plaintiff's mortgage should not be made parties by the writ of summons but should be added in the master's office pursuant to the judgment in the action (o). In the second place it is provided in Ontario by rule 490 as follows:

(j) Threlfall v. Wilson, 1883, 8 P.D. 18.

(k) See chapter 11, Assignee of the Mortgagee, Sec. Sec. 101 and 102.

(l) See chapter 12, Execution Creditors of the Mortgagee, Sec. 112; R.S.O. 1914, c. 80, s. 27.

(m) Johnston v. Consumers Gas Co., 1896, 17 O.P.R. 297.

(n) Including subsequent mortgagees, execution creditors and mechanics lienholders.

490.- (1) Where one or more of the persons interested in the equity of redemption are already defendants, and it is made to appear that by reason of their number or otherwise, it is expedient to permit the action to proceed without the presence of the other persons interested in the equity of redemption, the court may give directions accordingly, and may order such other persons to be made parties in the master's office after judgment.

(2) Where after judgment it appears that persons are interested in the equity of redemption besides those who are already parties, such persons may be made parties in the master's office upon such terms as may seem just.

Under the first clause of the rule either an interlocutory order may be made or a special provision may be inserted in the judgment, but such provision should not be inserted in a judgment obtained on praecipe (p).

Upon a motion to add parties in the master's office notice should be given to the parties already before the court, but it is not'necessary to notify the persons whom it is intended to add as parties (q). The application must be made before final order of foreclosure or sale (r).

Notwithstanding this rule the court will require the plaintiff to frame his action with diligence and to bring the proper parties before the court in the first instance (s).

(o) Jackson v. Hammond, 1879, 8 O.P.R. 157; Nelson v. Cochrane, 1889, 13 O.P.R. 76; see Sec. 238, infra.

(p) See further notes to this rule in Holmested, Ontario Judicature Act, 4th ed., 1084 ff.

(q) Penner v. Canniff, 1868, 1 Chy. Ch. Ont. 351; Rumble v. Moore, 1868, 1 Chy. Ch. 59; Harrison v. Grier, 1869, 2 Chy. Ch. 440. In Cummins v. Harrison, 1868, 1 Chy. Ch. 369 the order was granted ex parte.

(r) Municipality of Orford v. Bayley, 1868, 1 Chy. Ch. 272; Street v. Dolan, 1871, 3 Chy. Ch. 227.

(s) Paterson v. Holland, 1860, 8 Gr. 238; Buckley v. Wilson, 1861, 8 Gr. 566.

"If parties will not take the trouble (more or less according to circumstances) to bring the proper parties before the court, they have only themselves to blame, but they have no right to cast that labour upon the court and turn it into a court of inquiry for their convenience." (t)

Everyone whose interests may be affected by the accounts to be taken in the action must be brought before the court either as plaintiff or as defendant. In an action for foreclosure or sale the interests of a mortgagee who has priority over the plaintiff cannot be affected by the accounts taken in the action, since the amount found to be due will be a charge on the property only subject to the claim of the prior mortgagee. A prior mortgagee therefore is not a necessary party to an action for foreclosure or sale (u). On the other hand in a redemption action (v) all subsequent mortgagees and the owner of the ultimate equity of redemption must be joined as defendants for the purpose of foreclosing them. Hence the maxim, you may foreclose without redeeming, but you cannot redeem without foreclosing. When a person seeks to redeem he joins all mortgagees up to the mortgagee whom he seeks to redeem parties and offers to redeem them; he also joins as parties all the mortgagees subsequent to him and the owner of the ultimate equity of redemption and asks for the foreclosure of them. If the action is for foreclosure of sale, the plaintiff need not join prior mortgagees. He need join as parties only those persons whom he seeks to foreclose (w).

Accordingly a person who has a title paramount to the mortgage in respect of which foreclosure or sale is sought should not ordinarily be made a party at all and will not be affected by the proceedings. The ordinary remedy of the subsequent mortgagee against a prior mortgagee is merely to redeem the prior mortgage. If, however, any relief is sought against any persons (other than subsequent encumbrancers whom it is sought to foreclose) they must be made parties by writ and they cannot be made parties in the master's office (x), unless the case comes within rule 490 already mentioned.

(t) Portman v. Paul, 1864, 10 Gr. 458.

(u) Crawford v. Meldrum, 1872, 19 Gr. 165.

(v) See chapter 25, Action for Redemption, Sec. 257.

(w) Strahan, Law of Mortgages, 2nd ed. pp. 157-158.

So if the prior security was created by a deed absolute in form, a subsequent mortgagee is at liberty to make the prior mortgagee a party to his foreclosure action for the purpose of obtaining a declaration that the deed is really a mortgage and therefore redeemable, although he does not offer to redeem but merely seeks to foreclose or sell subject to the mortgage (y). The execution creditors of the alleged mortgagee are necessary parties to such an action (z).