by Mortgage Demise for Years, by Tenant for Life, &c. One Thousand heirs, executors or administrators, or other the person or persons No. VI. for the time being entitled to redeem the said several allotments, pieces or parcels of land and premises, shall pay unto the said (mortgagee), his executors, administrators or assigns, the sum of £ sterling, with interest for the same from the day of the date hereof, at the rate of 5l. for every 100l. by the year, without deduction, THEN these presents, and the said term hereby granted, and every clause, matter and thing herein contained, shall cease, determine and be void. (c) , mortgagor to pay the same 10. AND the said (mortgagor) doth hereby for himself, his heirs, Covenant by executors and administrators, covenant with the said (mortgagee), keep down his executors, administrators and assigns, that in case the said interest, and to principal sum of £ or any part of the same, shall remain half-yearly. unpaid after the said day of THEN the said (mortgagor), his executors, administrators or assigns, or other the person or persons for the time being entitled to the equity of redemption of the said premises, will from time to time, and at all times during the continuance of this mortgage security, pay unto the said (mortgagee), his executors, administrators and assigns, interest for the said sum of £ or so much thereof as shall be then owing, at the rate of 51. for every 100l. by the year, on the day of in every year, without deduction; the first half-yearly payment to be made on the of and the day of day next; to the intent that no person becoming entitled to the said allotments, pieces or parcels of land hereby demised, shall, after the decease of the said (mortgagor), be chargeable with any further arrear of interest than for six calendar months preceding the time when the title to such possession shall have accrued. 11. AND ALSO, that the said (mortgagor) now hath in him- That mortgagor has good right to demise. (e) The proviso for redemption in mortgages under the above act should Practical always be framed in general terms, as the act expressly requires that the mort- observations. gage shall contain a proviso for cesser of the term whenever the moneys thereby secured shall be fully paid and satisfied; and a strong opinion seems to be entertained amongst the profession, that a proviso for the cesser of the term on some specified day would be altogether void. No. VI. Mortgage One Thousand self good right, full power and lawful authority to demise the said allotments, pieces or parcels of land and premises by Demise for hereby demised, unto the said (mortgagee), his executors, administrators and assigns, for the said term of 1,000 years in manner aforesaid, according to the true intent and meaning of these presents. Years, by Tenant for For quiet enjoyment and freedom from incumbrances. For further assurance. Declaration that mortgagor shall enjoy until default. 12. AND ALSO, that it shall be lawful for the said (mortgagee), his executors, administrators and assigns, from time to time and at all times during the continuance of this mortgage security, to enter into and upon, have, hold, use, occupy, possess and enjoy, all and singular the said allotments, pieces or parcels of land hereby demised, and to receive and take the rents, issues and profits thereof, for his and their own use and benefit, for all the said term of 1,000 years, without any lawful let, suit, eviction or disturbance of or by the said (mortgagor) or any other person or person whomsoever; AND that free from all incumbrances whatsoever. 13. AND ALSO, that the said (mortgagor), and all persons whomsoever rightfully claiming any estate or interest in the said allotments, pieces or parcels of land and premises hereby demised, shall and will, from time to time, and at all times during the continuance of this security, at the request of the said (mortgagee), his executors, administrators or assigns, but at the costs of the said (mortgagor), his executors or administrators, or other the person or persons for the time being entitled to the equity of redemption of the said premises, make, do, execute and perfect all such further assurances, for the more perfectly or satisfactorily demising, assuring and confirming the same allotments, pieces or parcels of land and premises, unto the said (mortgagee), his executors, administrators and assigns, for all the then residue of the said term of 1,000 years, as the said (mortgagee), his executors, administrators or assigns, or his or their counsel in the law, shall require. 14. AND IT IS HEREBY DECLARED, that until default shall be and interest, it shall assigns, or other the No. VI. Mortgage by Demise for Years, by person or persons for the time being entitled to the equity of redemption of the said mortgaged premises, subject to the said term of 1,000 years, to hold and enjoy the same premises, One Thousand and to receive and take the rents and profits thereof without let, suit, eviction or disturbance of or by the said (mortgagee), his executors, administrators or assigns, or any person or persons whomsoever rightfully claiming under him or them. IN WITNESS, &c. Tenant for Life, &c. Parties. No. VII. MORTGAGE IN FEE OF TITHES BY A LAY IMPROPRIATOR TO (a) Tithes, whether in the hands of ecclesiastics or laymen, were formerly considered a very inadequate mortgage security. In the former instance because spiritual persons were incapable of alienating tithes or other property belonging to them in that character (13 Eliz. c. 20), in the latter instance, because, though capable of alienation by a lay impropriator, they were incapable of being distrained for at common law; for being of an incorporeal nature, they were considered as having no locality: (Noy. Max. 132: Stat. Marl. 52 Hen. 3, c. 15; 3 Inst. 131.) Added to this, from the difficulties and inconveniences attending the collection of tithes in kind, they were found to be a troublesome property for a mortgagee to have any dealings with. But, notwithstanding a tithe owner had no remedy by distress, he might have maintained debt against the lessee (stat. 8 Anne, c. 14, s. 4; 5 Geo. 3, c. 17), a rule which holds equally with lay impropriators, as with ecclesiastics, the stat. 32 Hen. 8, c. 7, s. 7, having put tithes in the hands of lay impropriators, upon the same footing as other incorporeal hereditaments, 2. WHEREAS the said (mortgagor) being seised in fee, or otherwise well and sufficiently entitled as the lay impropriator to the great tithes arising out of the rectory of B. in the county of C., No. VII. Mortgage in Fee of Tithes by a Lay Impropriator to secure 4007. and Interest, fc. and turned them as it were into lands and tenements; from whence it necessarily Recital that seems to follow, that after the passing of the above-mentioned statutes, a lessor tithes have been of tithes had the same remedies, except as to the power of distraining for them, and commuted in which has since been conferred upon him, as a lessor of corporeal hereditaments; pursuance of (Talentine v. Denton, Cro. Jac. 111; Tippin v. Gover, Sir T. Raym. 18; Thursby v. Plant, 1 Wms. Saund. 240; Dean and Chapter of Windsor v. Gover, 2 Wms. tion acts. Saund. 304); still the point does not appear to have been solemnly decided, until tithe commuta the case of Bally v. Wells, 3 Wils. 25. In that case, an action of covenant was Bally v. Wells. brought by a rector of a parish against the assignees of his lessee for years of his tithes, who had covenanted for himself, his heirs, executors and assigns, not to let to any of the farmers of the parish without the plaintiff's, the lessor's consent: and the breach was, that the defendant, the assignee, after the premises came to him by assignment, let some farmers of the parish have part of the tithes, without the plaintiff's consent. After verdict for the plaintiff, it was objected in arrest of judgment, that the action did not lie against the assignees, for it was a mere personal covenant, binding on the lessee only, and that the tithes were incorporeal, lying in grant, and therefore such a covenant run along with them as it would with the lands which lie in livery, and that a rent could not be reserved out of them; for if a lease were made of them for years, it was good by way of contract to have an action of debt against the lessee, but the lessor could not distrain, and that the assignee of the tithes was not chargeable with the rent, and consequently the defendant could not be chargeable with the breach of the covenant in that case. But it was answered and resolved by the court that the action was maintainable against the assignee; for as to the objection that tithes were incorporeal, and that therefore the assignee was not bound, they answered, that tithe was a tenth part of the profits of the land; the profits of the land was the land itself; tithes were tangible and visible; might be put in view in an assize; an ejectment lay for them; a præcipe quod reddat lay fora portion of tithe, and they were realized by statute 32 Henry 8, c. 7, s. 7. A warranty might be annexed to incorporeal inheritance, and that they had every property of an inheritance in land, except that they be in grant and not in livery. And as to the objection that a lease of tithes was not good, and that the assignee was not chargeable with the rent, they cited the argument of Saunders in the case of Dean and Chapter of Windsor v. Gover, above referred to, which they said was an exceedingly good one, and with which they all concurred, and they said that debt lay for rent reserved upon a lease for tithes at common law. The recent Tithe Commutation Acts (6 & 7 Will. 4, c. 71; 7 Will. 4 and Powers con1 Vict. c. 69; 1 & 2 Vict. c. 64; and 2 & 3 Vict. c. 32) by substituting a rent- ferred by tithe charge in lieu of tithes, and also conferring a power of distress for the recovery, commutation have removed in great measure the obstacles which rendered tithes, or at any rate acts. such as in the hands of laymen, ineligible as a mortgage security. And as to the objection that was once raised to a rent-charge being redeemable at any time, that question has been completely set at rest by the recent Statute of Limitations: (3 & 4 Will. 4, c. 27.) The rent-charge under the Tithe Apportionment Act is apportioned in the How rentfollowing manner :charge in lieu First, it is directed that the total sum to be paid by way of rent-charge shali of tithe is be apportioned amongst the several lands in the parish having regard to the apportioned. average titheable produce, and productive quality of the lands; so that in each case the several lands shall have the full benefit of every modus and composition real, prescriptive and customary payment, and of every exception from, or nonhability to, tithes relating to the said lands respectively, and having regard to |