[the title deeds and writings relating to his freehold estates,] (b) situate at A- in the county of B-, for securing to them the said (bankers) the sum of 1,500l. then advanced by them to him, and also such further sum and sums of money as shall become due from him on the balance of a running account, (c) with interest thereon at the rate of 51. for every 100l. by the year, and the said (mortgagor) at the same time undertook and agreed, whenever thereunto required so to do by the said (bankers) or other the partner or partners for the time being of the said No. IV. Form of Memorandum made by Witness on Deposit of Title Deeds with Bankers, &c. (b) If the estate be copyhold, substitute for words within brackets"the several copies of court roll relating to his copyhold estates." If leasehold "the original lease and several assignments of certain messuages, &c. * If the property consists of freehold, leasehold and copyhold estates, then substitute- at "the several title deeds relating to his freehold estates situate , &c.; the original lease and several mesne assignments of his leasehold estates situate, &c.; and the several copies or courtrolls and other documents relating to his copyhold estates situate," &c. covenants. Questions have often arisen with respect to the liability of equitable Equitable mortgagees by the deposits of leases to the rents and covenants therein con- mortgagee, by tained. It seems formerly to have been considered that he was so liable, and deposit of lease, this whether or not he had taken possession of the premises: (Lucas v. Comeford, not liable to 1 Ves. 235; S. C., 3 Bro. C. C. 166; Flight v. Bentley, 7 Sim. 149.) After- the rents and wards, it was considered that he was not liable unless he took possession : Moores v. Choat, 8 Sim. 509.) But it has been since decided, and seems now to be settled, that a deposit of title-deeds of leasehold property does not constitute the relationship of landlord and tenant between the lessor and equitable mortgagee, and consequently that the latter is exonerated from all liability to the rent or performance of the covenants of the lease: (Robinson v. Rosher, 1 You. & Coll. 7; Moore v. Greg, 12 L. T. 169.) (e) In order that an equitable mortgage may be made to relate to future To include advances, there must be an express agreement, either by parol or by writing, to further advances that effect. In fact such an agreement will be requisite to include even moneys there must be due at the time of the deposit, if the security were given for the purpose of an express obtaining future advances: (Mill. Eq. Mort. 30, 31; referring to Mountfort v. agreement. Scott, 3 Mad. 34; Ex parte Martin, 2 Mont. & Ayr. 243; 4 Dea. & Ch. 457.) It is quite clear, however, that anequitable mortgage by deposit may be made to relate as well to future se to past or present advances: (Ex parte Langston, 17 Ves. 227; Ex parte Whitbread, 19 ib. 209: Ex parte Lindon, 2 M. D. & D. 428; Ex parte Nettleship, 2 ib. 128). No. IV. Form of Memorandum made by Witness on Deposit of Title Deeds with Bankers, fc. firm (d), at the costs of the said (mortgagor), to execute a valid conveyance by way of mortgage of the said estates, for securing the repayment of the said sum of 1,500l., so advanced as aforesaid, as also of any further sum or sums of money as shall or may become due from him to them on the balance of such running account as aforesaid; such mortgage deed to contain the usual powers for sale, indemnity to purchasers, and the covenants and clauses incidental to an ordinary mortgage assurance. If new partners are to have the advantage of the security, they should be named. R. S. (name of witness.) (d) Where a deposit is intended to cover future advances, and is made with several partners of a firm, and it is intended, as is almost universally the case, that any new partners admitted into the partnership are to have the benefit of the security, the memorandum accompanying the deposit should clearly express this intent. It may certainly be proved by parol evidence, but this is always attended with expense and inconvenience, and may, perhaps, fail of proof altogether, from inability to produce such evidence: (Ex parte Kensington, 2 Ves. & Bea. 86: Ex purte Oakes, re Waters, 2 M. D. & D. 236.) No. V. MEMORANDUM, IN WHICH A DEPOSITOR ACKNOWLEDGES THAT HE HAS DEPOSITED HIS DEEDS, AND UNDERTAKES TO EXECUTE A MORTGAGE ON REQUEST. [No stamp will be required.] MEMORANDUM.-I, (mortgagor), of, &c., on the day of last, deposited with Messrs. (bankers) and Co., of, &c., the several title deeds relating to my freehold estate situate at, &c., for securing to them on demand the sum of £ then lent and advanced by them to me; and also such further sums as should become due from me to them on the balance of a running account, with interest for the same at the rate of 51. for every 100%. by the year. AND at the same time I undertook and agreed, whenever thereunto requested by the said (bankers), or other the partner or partners for the time being of the said firm, and at my own proper costs and charges, to execute a valid conveyance by way of mortgage of said estates, for securing the repayment of the said sum of £ and such further sums as shall be thereafter advanced, and as should appear to be due from me on such running account as aforesaid; such mortgage deed to contain the usual powers for sale, indemnity to purchasers, and the covenants, clauses and agreements incidental to ordinary mortgage assurances. my No. VI. MEMORANDUM MADE BY A WITNESS UPON A DEPOSIT OF Practical suggestions. [No stamp will be required.] MEMORANDUM.-(Mortgagor), of, &c., hath this day deposited with Messrs. (bankers) and Co., of, &c., bankers, the certificates numbered respectively (state numbers) of the several shares held by him in the Railway Company, for securing the payment to the said (bankers), or other the partners for the time being of the said firm, on demand, the sum of £ this day lent and advanced by them to him; and also for the purpose of securing the further sum of £ due and owing from the said (mortgagor) to the said (bankers); and also for the purpose of securing such further sums as shall become due from him to them on a balance of a running account, and interest for the said several sums, at the rate of 51. per centum per annum. AND at the same time the said (mortgagor) undertook and agreed, whenever thereunto requested by the said (bankers), or other the partners for the time (a) There is a material difference between an equitable mortgage created by a deposit of title deeds relating to lands, and a deposit of share certificates. In the former instance, as we have already seen, actual delivery is necessary, yet when delivered as such security, the transaction is complete. In the latter case actual delivery is not necessary, if the proper notice is given to the secretary; but until such notice be given, the lien will not be consummated: (Coming v. Prescott, 2 You. & Coll. 488; see also Mill. Eq. Mort. 26.) Whenever, therefore, an equitable mortgage is intended to be made by a deposit of railway certificates or documents of a like nature, no time should be lost in giving notice to the secretary, or some other authorized officer of the company: (2 Hughes Pract. Mort. 165.) and £ No. VI. made by Witness upon Deposit of Railway Shares, fc. being of the said firm, to execute to them a valid transfer of the said shares by way of mortgage, for the purpose of securing to Memorandum them the repayment of the said two several sums of £ and also of such farther sums as may be due and owing from him to them upon such balance of account, and interest as aforesaid; such mortgage to contain a power of sale, and all usual mortgage Covenants. |