1. It is contended, on the respondents’ part that the suit ought to have been dismissed, the plaint not being properly framed. It is said that the plaintiff ought, as second mortgagee, to have sued to redeem, or at least prayed for a sale subject to the first mortgage. The first mortgagee having purchased the equity of redemption, it was open to the second mortgagee to ask for the sale of the property and so give the purchaser an opportunity of redeeming him. It is unnecessary that he should expressly ask for the sale to be made subject to the prior incumbrance. In the nature of things no other sale could be made. We think the decree, on the whole, gives full effect to the rights of the parties, inasmuch as it allows the first mortgagee who has purchased to redeem, if he wishes to do so. On the other hand, the decree makes the sale subject to the rights of the first mortgagee.
2. The claim for alleged improvements said to have been effected by the first mortgagee since his purchase cannot, we think, be allowed. In this respect he is in no better position than the mortgagor himself who may choose to spend money on his property. We cannot accede to the view that the improvements were made by the purchaser in the character of mortgagee, for in that capacity be is not shown to have been entitled to possession. The decree must be varied in that respect.
3. We can see no reason why the plaintiff should not be entitled to the interest payable under his mortgage. Interest at the contract rate must be allowed up to date of decree of the Subordinate Judge and from, that date at six per cent. The decree must also be amended by directing that any surplus after paying both mortgages be paid to the defendants 3 to 6.
4. The memorandum of objections is disallowed with costs.
5. Respondents must pay appellant’s costs of appeal.