If there are two or more mortgagees they must both or all be parties to the action, whether they be joint tenants or tenants in common of the lands conveyed by the mortgage, and therefore one of the mortgagees may bring a foreclosure action and make his co-mortgagees defendants, if they will not join as plaintiffs (a). Where several persons have advanced mortgage moneys in distinct shares, one of such persons cannot maintain an action for forclosure of a proportionate part of the estate (b). In such a case one of the mortgagees may bring an action to foreclose the mortgage making his co-mortgagees defendants, and is entitled to judgment for foreclosure on default in payment of the whole mortgage debt in the proportions due to the several mortgagees separately (c).

If a mortgage is vested in two persons jointly as trustees or otherwise, the survivor may maintain an action for foreclosure without joining as parties the personal representatives of the deceased mortgagee if the latter had no beneficial interest in the mortgage (d).

In Ontario under the Devolution of Estates Act the real and personal property of a deceased person devolves upon and becomes vested in his personal representatives, but in the case of real property not disposed of, conveyed to or distributed may move without cross-examining. The fate of the motion depends upon the defendant's depositions. Langdon-Davies Motors Canada v. C-asolectric Motors, 1914, 32 O.L.R. 84.

(a) Luke v. South Kensington Hotel Company, 1879, 11 Ch.D. 121; In re Continental Oxygen Co., Elias v. The Company, [1897] 1 ch. 511.

(b) Palmer v. The Earl of Carlisle, 1823, 1 Sim. & St. 423, 18 R.C. 491.

(c) Davenport v. James, 1847, 7 Hare 249.

(d) Landale v. McLaren, 1892, 8 M.R. 322; Plenderleith v. Smith, 1905, 10 O.L.R. 188; see s. 4 of the Mercantile Law Amendment Act, quoted in chapter 13, Persons entitled on Death of the Mortgagee, Sec. 124.

74.-(1) Trustees, executors, and administrators may sue and be sued on behalf of, or as representing, the property or estate of which they are trustees or representatives, without joining any of the persons beneficially interested, and shall represent them; but the court may at any time order any of them to be made parties in addition to, or in lieu of, the previous parties.

(2)This rule shall apply to an action to enforce a security by foreclosure or otherwise.

In a suit brought by executors of a mortgagee to foreclose it was held that the heirs of the deceased mortgagee or the persons beneficially entitled under his will were not necessary parties (f).

Where a mortgage is vested in trustees the cestui que trust or one of the cestuis que trust may bring action for foreclosure of the entire mortgaged estate. But the trustees must be made parties to such an action (g).

Where a mortgage is taken in the name of one partner to secure a partnership debt and a bill is filed by him to enforce the security, the representatives of a deceased partner are not necessary parties (h).

The Married Women's Property Act (i) enacts that every woman whether married before or after the act shall have in her own name against all persons whomsoever, including her husband, the same remedies for the protection and security of her own separate property, as if such property belonged to her as a feme sole. When, therefore, a married woman advances on mortgage moneys which are her separate property, it is no longer necessary that she should sue for foreclosure or sale by a next friend, or that she should give security for costs ( j).

(e) For a fuller statement of these provisions, see chapter 13, Persons entitled on Death of the Mortgagee, Sec. 123.

(f) Lawrence v. Humphries, 1865, 11 Gr. 209.

(g) Wood v. Williams, 1819, 4 Madd. 186, 20 R.R. 291.

(h) Stephens v. Simpson, 1866, 12 Gr. 493.

(i) R.S.O. 1914, c. 149, s. 16.

The assignee of the mortgagee's estate in the land may sue for foreclosure or sale, but to enable him to sue upon the covenant an assignment of the mortgage debt is necessary (k).

If a sheriff seizes a mortgage under a writ of execution against the lands of the mortgagee, he may bring an' action for foreclosure or sale (l).