§ 2. Where trustees, seeking to set aside a mortgage, made their Chap. beneficiaries parties, it was held that the mortgagee, against XXXVIII. whom a judgment had been made cancelling the security, had a right to appeal against an order that he should pay the costs of the beneficiaries, and such order was discharged (h). rested in the mortgage As a general rule, persons who are merely interested in the Persons intemortgage money, but who have no right to redeem, are not necessary parties. So, where a person contributes part of a sum money. advanced on the security of a mortgage to his co-lender, he is sufficiently represented by the latter (i). But legatees, whose legacies were charged by the will of the Legatees. mortgagor upon the equity of redemption, were held to be necessary parties to a redemption suit, instituted by the mortgagor's devisee, in which the mortgagee claimed an absolute title by virtue of the Statute of Limitations (). tives of bank If creditors come in to redeem, on refusal of their trustee to Representaenforce the right of redemption, they must make the persons rupt mortlegally entitled to the equity of redemption, such as executors gagor. or the trustee of a bankrupt, parties to their action (m). But the equity of redemption now vests on such refusal in the creditor (n). of felon mort In case of felony or treason of the mortgagee, the adminis- Administrator trator appointed by the Crown, or his interim curator, must be gagee. a party as representing the mortgagee (0). several mort gages are consolidated; In cases not falling within sect. 17 of the Conveyancing Act, Who must be 1881 (p), if mortgages of two different estates have been made parties where by the same mortgagor to the same mortgagee at different dates, and in respect of distinct transactions, or if such mortgages become vested by assignment or otherwise in the same person, one of the estates cannot be redeemed without the other, and a subsequent purchaser of the equity of redemption of one of the estates takes subject to all the equities affecting the mortgagor; if, therefore, the equities of redemption of the two estates become vested in different persons by assignment or otherwise, the persons interested, subject to the mortgages, in both estates are necessary parties to an action for redemption (q). (h) Re Cooper, Cooper v. Vesey, 20 Ch. D. 611, C. A. (i) Emmet v. Tottenham, 10 Jur. N. S. 1090. (k) Bachelor v. Middleton, 6 Ha. 75. (m) Barn. Ch. R. 33. (n) Ante, p. 715. (0) 33 & 34 Vict. c. 23, s. 21. (p) 44 & 45 Vict. c. 41, s. 17. As to consolidation, see post, Chap. XLIII. (q) Ireson v. Denn, 2 Cox, 425; Mills v. Jennings, 13 Ch. D. 629, 641, 646, 647, C. A., affirmed, sub nom. Jennings v. Jordan, 6 App. Ca. 698. Chap. XXXVIII. § 2. -where Where two estates are mortgaged together to the same person for securing the same sum of money, and subsequently the two estates, subject to the mortgage, become vested in different persons, the whole must be redeemed together, and the owner of redemption is the equity of redemption of one estate, claiming to redeem both estates, must make the persons interested in the equity of redemption of the other estate parties to his action ("). equity of vested in several persons. Heir of mortgagor, when a proper party on redemption by executor. Persons having partial interests. Remainder man. Mortgage of executors. Where real and personal estate were mortgaged together to secure the same debt, and the mortgagor died leaving a will of the personalty, but intestate as to real estate, and the executrix sought to redeem the whole of the mortgaged property without making the heir-at-law, who was not known, a party, it was held that, though if the heir could have been found he ought to have been a party, yet the Court would not, under the circumstances, delay making a decree until he was ascertained and made a party (s). But now the heir is not a necessary party (f). An action for redemption cannot be sustained by a person having a partial interest in the equity of redemption, in the absence of the other persons interested therein (u). Thus where the purchaser of a mortgage term of 200 years, created out of and determinable with the estate of a tenant for life, filed a bill to redeem a prior mortgage term of 1,000 years limited by the tenant for life under a power; it was held that the tenant for life was a necessary party, though his interest was merely nominal (x). A remainderman cannot, during the continuance of the particular estate, redeem a mortgage of the fee, where the mortgagee is also mortgagee of the particular estate, except with his consent (y). Where executors have mortgaged real estate for payment of real estate by debts, they are not necessary or proper parties to a redemption suit, unless the equity of redemption is limited to them (z). To a suit for redemption by the heir of a mortgagor against Executor of mortgagor. (r) Cholmondeley v. Clinton, 2 J. & (t) Re Harrowby and Paine, inf. (u) Henley v. Stone, 3 Beav. 355; p. 134; Bolton v. Salmon, (1891) 2 Ch. 48, 52. (x) Hunter v. Macklew, 5 Ha. 238; quære, if in this case the inheritance was represented. (y) Prout v. Cock, (1896) 2 Ch. 808. (z) Greenwood v. Rothwell, 7 Beav. 279. And see Skeffington v. Whitehurst, 3 Y. & C. Ex. 1. a mortgagee in possession, alleging that he had been overpaid, the executor of the mortgagor is a necessary party (a). Chap. XXXVIII. § 2. Who must be action by Subsequent mortgagees cannot redeem without making the mortgagor, or his heir, a party to the action (b) in order to foreclose him; and if the heir be not within the jurisdiction of parties to the Court, the cause cannot proceed, because the decree is, that subsequent the second mortgagee shall redeem the first, and the mortgagor, for redempmortgagees or his heir, shall redeem the second or be foreclosed (c). But tion. now the legal personal representative, and not the heir, is the proper party in such cases (d). This principle is carried so far, that if a man mortgage an entire estate to A., which on the death of the mortgagor devolves on two different persons, and one of those persons mortgages his part to another, and the mortgagee of that part brings his action to redeem, he must make not only the first mortgagee, and his own immediate mortgagor, but also the owner of the other share, parties to the action, because he must redeem the first mortgagee in toto (e), and the other party, so far as respects part of the estate, is standing in the place of the original mortgagor (ƒ). A second mortgagee might formerly have brought an action to redeem the first mortgagee without making subsequent incumbrancers parties, unless he sought to foreclose them; but the rule at the present time is different, as the form of judgment is that the mesne incumbrancers must successively redeem all prior to them or be foreclosed (g). parties. An assignee pendente lite of the equity of redemption is Whether generally a proper party, as having an interest in the subject- assignees pendente lite matter of the action, and being interested in the accounts. must be Indeed, it has been held that a redemption suit could not proceed in the absence of an assignee pendente lite of the plaintiff in the face of an objection of the defendant on that ground (h). But an assignee has no right distinct from that of his assignor (i), and therefore it would seem that the assignee, if made a party, would stand in no better position than his assignor as regards (a) Baker v. Wetton, 14 Sim. 426; 9 Jur. 98. (b) Fell v. Brown, 2 Bro. C. C. 276; Ramsbottom v. Wallis, 5 L. J. (N. S.) Ch. 92; Farmer v. Curtis, 2 Sim. 466; King v. Smith, 1 Coll. 555; Rhodes v. Buckland, 16 Beav. 212. See Seton, 6th ed. 1937. (c) See sup. And see Palk v. Clinton, 12 Ves. 48; Ramsbottom v. Wallis, sup. Chap. any application for extension of time to redeem, or generally as XXXVIII. to the terms of redemption, and that he would not be heard in § 2. support of his assignor's title to redeem, if contested by the defendant, on the ground of the Statutes of Limitation or otherwise. In these respects it is conceived that the general rule would apply, that an assignment pendente lite must not be allowed to vary or affect the rights of the parties to the action (k). Chancery Jurisdiction of County Courts. SECTION III. JURISDICTION IN ACTIONS for RedempTION. i.-General Jurisdiction.-By the Judicature Act, 1873 (), actions for redemption are assigned to the Chancery Division of the High Court of Justice. By the County Courts Act, 1888 (m), the County Courts have jurisdiction in all actions for redemption, where the mortgage or charge does not exceed 5007. in amount (n), or where the amount actually advanced does not exceed that sum (0). An action by a mortgagor to set aside a sale and conveyance by the mortgagee of the mortgaged property is an action for redemption within the meaning of this Act (p). Charges under the Public Health Act, 1875, s. 257, may be enforced under the provisions of this Act (9). An action for redemption brought in a County Court must be commenced, where both the mortgagee and mortgagor dwell or carry on business in one or more of the metropolitan districts, either in the district in which the mortgagee dwells or carries on business, or in that in which the mortgagor dwells or carries on business (r). Elsewhere, in England and Wales, the action must be commenced in the Court within the district in which the lands, tenements, or hereditaments, or any part thereof, are situate. The jurisdiction of the County Court is not affected by the fact that the mortgagor has become bankrupt (s). (k) As to this rule, see ante, p. 653. (n) See 84 L. T. 587. (0) Shields, Whitley, &c. v. Richards, W. N. (1901) 106. (p) Powell v. Roberts, L. R. 9 Eq. 169. (9) Hornsey v. Monarch Bldg. Soc., 24 Q. B. D. 1. (r) 51 & 52 Vict. c. 43, s. 84. See Reg. v. Bloomsbury County Court, 24 Q. B. D. 309. (s) Medhurst v. Golder, 16 L. T. 50. ii.—Jurisdiction to order Sale in lieu of Redemption.-By Chap. sect. 25 of the Conveyancing Act, 1881 (t), it is enacted as XXXVIII. follows:§ 3 (ii). "(1.) Any person entitled to redeem mortgaged property may Sale of morthave a judgment or order for sale instead of for redemption in an gaged proaction brought by him either for redemption alone, or for sale alone, perty in or for sale or redemption, in the alternative. action for foreclosure, "(2.) In any action, whether for foreclosure, or for redemption, &c. or for sale, or for the raising and payment in any manner of mortgage money, the Court on the request of the mortgagee, or of any person interested either in the mortgage money or in the right of redemption, and notwithstanding the dissent of any other person, and notwithstanding that the mortgagee or any person so interested does not appear in the action, and without allowing any time for redemption or for payment of any mortgage money, may, if it thinks fit, direct a sale of the mortgaged property on such terms as it thinks fit, including, if it thinks fit, the deposit in Court of a reasonable sum fixed by the Court to meet the expenses of sale, and to secure performance of the terms. "(3.) But, in an action brought by a person interested in the right of redemption and seeking a sale, the Court may, on the application of any defendant, direct the plaintiff to give such security for costs as the Court thinks fit, and may give the conduct of the sale to any defendant, and may give such directions as it thinks fit respecting the costs of the defendants or any of them. "(4.) In any case within this section the Court may, if it thinks fit, direct a sale without previously determining the priorities of incumbrancers. "(5.) This section applies to actions brought either before or after the commencement of the Act. 66 "(6.) The enactment described in Part II. of the Second Schedule to this Act (u) is hereby repealed. "(7.) This section does not extend to Ireland." The Chancery Amendment Act (x), which enabled the Court to direct a sale in lieu of foreclosure, did not extend to actions brought by the mortgagor for redemption. It will be observed that this section applies to foreclosure actions as well as to actions for redemption. Its application to the former class of cases will be considered later (y). An order for sale may, apparently, be made under this section When order in a redemption action at any time before the final decree for may be made. redemption (z). (t) 44 & 45 Vict. c. 41. (u) 15 & 16 Vict. c. 86, s. 42, which gave jurisdiction only to order sale in lieu of foreclosure. (x) 15 & 16 Vict. c. 86, s. 48. (2) Union Bank of London v. Ingram, |