The case is more complicated if two parcels are subject to a mortgage to secure one debt and subsequently one parcel is conveyed or mortgaged to one person and the other is conveyed or mortgaged to another person. The question of the relative liabilities of the parties with regard to the common mortgage is no longer one merely between the former owner of the equity of redemption in the two parcels and the mortgagee or grantee of one of the parcels (o), but in addition the conflicting interests of the grantees or mortgagees of the respective parcels come into question.

(j) That is, against the owner's trustee in bankruptcy, his judgment creditors, his personal representative and against his wife who charged her own property for the prior debt. 21 Hals-bury, Laws of England, p. 305.

(k) In re Repington, Wodehouse v. Scobell, [1904] 1 Ch. 811.

(l) In re Jones, Farrington v. Forrester, [1893] 2 Ch. 461.

(m) In re Darby's Estate, Rendall v. Darby, [1907] 2 Ch. 465.

(n) Ker v. Ker, 1869, 4 I. R. Eq. 15; In re Darby's Estate, supra.

It has been broadly stated that the "right of a subsequent mortgagee of one of the estates to marshall-that is, to throw the prior charge on both estates upon that which is not mortgaged to him-is an equity which is not enforced against third parties, that is, against any one except the mortgagor and his legal representatives claiming as volunteers under him. It is not enforced against a mortgagee or purchaser of the other estate. If both estates are subject to the separate second mortgages the Court apportions the first mortgage between them" (p). This opinion was, however, expressed in a case in which the second mortgage on the first parcel was expressed to be subject to the first mortgage, and is correct if qualified by reference to that fact. The second mortgage on the second parcel was also expressed to be subject to the first mortgage, and it was correctly decided, on an appeal by the holder of this second mortgage from a judgment that the first mortgage debt should be apportioned, that the judgment ought to be affirmed. The rule is that if parcels subject to a common charge are conveyed or mortgaged in succession either expressly subject to encumbrances or without anything to indicate that those first sold are to be exonerated, the common charge should, as between the grantees or mortgagees of the different parcels, be apportioned rateably among the parcels, whether the later conveyance or mortgage is for value or is voluntary (q), or is taken with or without notice of the earlier conveyance or mortgage (r).

(o) As in Sec. 138, supra.

(p) Flint v. Howard, [1893] 2 Ch. 54, Kay, L.J. at p. 73; ef. Webb v. Smith, 1885, 30 Ch.D. 192, 202;. The Chioggia, [1898] P. 1, 6.

(q) Dolphin v. Aylward, 1870, L.R. 4 H.L. 486, 501.

(r) Flint v. Howard, [1893] 2 Ch. 54, 73.

If, on the other hand, the second mortgage or the conveyance of the first parcel contains a covenant against encumbrances or a declaration that there are no encumbrances or a covenant for further assurance (s), the mortgagee or grantee is entitled to have the securities marshalled so as to throw the whole of the first mortgage debt on the other parcel as against the subsequent purchaser or mortgagee of the latter parcel who does not take the legal estate for value and without notice (t). The result is similar if two parcels are mortgaged to A, then one to B and the other to C, and C 's mortgage is expressed to be subject to and after payment of both the earlier mortgages (u).

(s) In the case of a voluntary settlement a covenant for further assurance would not be sufficient. Ker v. Ker, 1869, 4 I.R. Eq. 15.

(t) In re Jones, Farrington v. Forrester, [1893] 2 Ch.- 461, 472; Jones v. Beck, 1871, 18 Gr. 671; Clark v. Bogart, 1880, 27 Gr. 450; Pierce v. Canavan, 1882, 7 O.A.R. 187; McCarthy v. McCartie (No. 2), [1904] 1 I.R. 100, 115; Tighe v. Dolphin, [1906] 1 I.R. 305.

(u) In re Mower's Trusts, 1869, L.R. 8 Eq. 110.