4f

684 WORTHINGTON ». LE1»

in their 4o satisfy the whole of this claim should the mort-
gaged property be found deficient.

These heirs then, are properly here in respect to an interest
which enures to tl^em by reason of the application of the proceeds
of the sale of the equity of redemption to the extinguishment of
the incumbrance; and also in regard to the title to the equity of
redemption itself which may here, or otherwise be drawn in ques-
tion by them; and morever for the purpose of having an account
taken of the mortgaged debt; and of making discoveries in rela-
tion to it; and therefore I shall over-rule their demurrers.

It is not necessary to make the personal representative of the
mortgagor a party to a bill to foreclose, or to sell; because the
plaintiff need only make him a party who holds the equity; and
the mortgagee is not bound to intermeddle with the personal estate,
or to run into an account of it; and if the heir would have the
benefit of any payment made by the mortgagor or his executor or
administrator, he must prove it. (i) This plaintiff could not, there-
fore, have been required to state, as she has done in her bill, or to
prove, that no letters testamentary or of administration had been
granted of the personal estate of Robert Lee, deceased, the mort-
gagor; and consequently, that allegation of the bill may be passed
over as mere surplusage.

But this is a bill by the administratrix of the mortgagee to
obtain payment of the debt, as she specially prays, by a sale of the
mortgaged estate; and the suit may terminate in a redemption;
in a mere foreclosure; or in a sale of the mortgaged property.
From the nature of the case therefore, it is indispensably neces-
sary, that all persons should be made parties to it whose rights
may be involved by either of those alternatives; or who may be
called on to execute a conveyance; or who should be bound by a
decree terminating in either of those modes, in favour of a pur-
chaser under a decree for a sale, or in any other way.

It has always been held, that upon the death of the mortgagee,
his heir cannot be allowed to exhibit a bill to foreclose without
making his executor or administrator also a party, who may have
a right to the mortgage money; (j) and it is now settled, on the
other hand, that, in such case, the executor or administrator of the
mortgagee cannot alone bring a bill to foreclose without making

(t) Powel Mortg. 968.—(j) Freak v, Hearsey, 1 Cha. Ca. 51; S. C. 2 Freem. 180;
S. C. Nelson, 93.