Every person whose interests may be affected by the accounts to be taken in the action must be brought before the court either as plaintiff or defendant. As already noted, any person who is interested in the equity of redemption and who has not been joined as a plaintiff must be made a defendant.

The holder of the mortgage sought to be redeemed must of course be a defendant, and in case of his dying without having transferred the mortgage the persons entitled on his death must be defendants (x).

The mortgagee after assignment and intermediate assignees are not necessary parties unless they have been in possession, and the mortgagor, alleging receipts in excess of the debt, claims personal repayment (y).

(t) 21 Halsbury, Laws of England, p. 150.

(u) See chapter 14, supra, Transferee of the Equity of Redemption, Sec. 132.

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

(w) Green v. Wynn, 1869, L.R. 4 Ch. 204; Forbes v. Jackson, 1882, 19 Ch.D. 615, at p. 622; Standard Realty Co. v. Nicholson, 1911, 24 O.L.R. 46, at p. 52; Gee v. Liddell,[1913] 2 Ch. 62, at p. 73.

(x) See chapter 13, Persons entitled on Death of the Mortgagee; cf. chapter 24, Action for Foreclosure or Sale, Sec. 233.

(y) Chambers v. Goldwin, 1804. 9 Ves. 254, at p. 269; Bickerton v. Walker, 1885, 31 Ch.D. 151; Hall v. Heward, 1886, 32 Ch.D. 430;

Persons claiming or interested in the mortgaged land under the mortgagee, as for instance persons to whom the mortgagee has assumed to convey the land or part of it, must be made defendants (z). Where the mortgagee has sold under the power of sale, it has been held that the purchaser must be made a defendant in a redemption action unless the mortgagor is satisfied with redemption subject to the agreement for sale, as the sale can not be enquired into or set aside if the purchaser is not before the court (a).

The interests of a mortgagee who has priority over the mortgage sought to be redeemed cannot be affected by the accounts taken in the action and he is not usually a proper party to the action. The general rule is that a subsequent mortgagee may make a prior mortgagee a party to his action only for the purpose of redeeming him, but where the prior mortgage was created by a deed absolute in form, the subsequent mortgagee may bring the prior mortgagee before the court for the purpose of showing that his interest is redeemable, without offering to redeem him (b). A subsequent mortgagee in an action brought by him to redeem a prior mortgage may impeach transactions by the prior mortgagee with reference to the mortgaged property and add as defendants purchasers from the prior mortgagee (c).

On the other hand the interests of every mortgagee subsequent to the mortgage sought to be redeemed may be affected by the accounts taken in the action, since the accounts so taken have priority over their rights, and all subsequent encumbrancers must be made parties (d). Where there are several successive mortgagees the owner of the equity may redeem the last one without redeeming any other, but if he wishes to redeem any anterior mortgagee, he must redeem all who are between that mortgagee and himself. A subsequent mortgagee who seeks to redeem a prior mortgagee is in a worse position in this sense, that he is not entitled to do so without foreclosing all persons who are between himself and the ultimate equity of redemption (e).

In re Prytherch, Prytherch v. Williams, 1889, 42 Ch.D. 590; 21 Halsbury, Laws of England, p. 150.

(z) McLaren v. Fraser, 1868, 15 Gr. 239; Dedford v. Boulton, 1878, 25 Gr. 561; Hood v. Easton, 1856, 2 Jurist N.S. 729.

(a) Campbell v. Imperial Loan Co., 1905, 15 M.R. 614; as to the liability of the mortgagee, if he is unable to reconvey the property, to make compensation to the mortgagor who is entitled to redeem, see Smith v. Hunt, 1901, 2 O.L.R. 134, S.C. 4 O.LR. 653.

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

(c) McLaren v. Fraser, 1868, 15 Gr. 239.

The reason why the mortgagor or other owner of the equity is not entitled to redeem an anterior mortgage without redeeming the intermediate mortgages is that the effect of each successive mortgage of the equity of redemption is to convey to the mortgagee the right to redeem the mortgage immediately above him and that in each case all that is left to the mortgagor is the right to redeem the latest mortgage (f) • A similar reason applies to a subsequent mortgagee who seeks to redeem a mortgage anterior to the mortgage preceding his, but in addition the subsequent mortgagee is not even the absolute owner of the equity of redemption in the mortgage immediately preceding his, because his own mortgage is subject to redemption, and therefore he must foreclose the owner of the ultimate equity of redemption as a condition of his redeeming any earlier mortgage.

If X has mortgaged Blackacre first to A, then to B and C,

(d) Strahan, Law of Mortgages, 2nd ed., p. 140; Coote, Law of Mortgages, 8th ed., vol. 1, p. 748.

(e) Teevan v. Smith, 1882, 20 Ch.D. 724, at p. 729. The passage referred to relates to the words "where a mortgagor is entitled to redeem" in s. 3 of the Mortgages Act, R.S.O. 1914, c. 112, and is quoted in chapter 20, Right to Assignment of Mortgage, Sec. 192.

(f) See chapter 14, Transferee of the Equity of Redemption, Sec. 131.

and then to D, the position as regards the parties to an action for redemption may be illustrated as follows (g):

(1) X seeks to redeem D. He makes D alone defendant.

(2) X seeks to redeem B and C. He must make them as well as D defendants, and must offer to redeem D also.

(3) X seeks to redeem A. He must make A, B and C, and D defendants, and must offer to redeem them all.

(4) D seeks to redeem B and C. He must make B and C and X defendants, and must claim foreclosure of X.

(5) D seeks to redeem A. He must make A, B and C and X defendants, and must offer to redeem B and C and claim foreclosure of X.

(6) B seeks to redeem A. He must make A, C, D and X defendants, and must claim to foreclose D and X. If he redeems he takes the estate subject to C's rights.

The principle illustrated by these examples is. often expressed by the words redeem up, foreclose down, that is to say, the person seeking redemption must redeem all the mortgagees above him up to the mortgagee whom he seeks to re-deem and must foreclose all persons below him down to the owner of the ultimate equity of redemption (h).