No. VIII. MORTGAGE IN FEE OF AN ADVOWSON BY THE PATRON, WITH BETWEEN (mortgagor, owner of advowson), of, &c., of the one part, and (mortgagee), of, &c., of the other part. available as a mortgage security. (a) An advowson cannot be considered an eligible mortgage security, because As to the most not only will the presentations yield a mortgagee no profit, but he will derive no eligible mode of advantage from the right of patronage; for although the legal right of presentation rendering an will be vested in him, he will nevertheless be compelled to present the nominee advowson of the mortgagor; for the mortgage will be considered merely as a pledge for the security of the money advanced thereon, and the mortgagee can make no profit by presenting to the church, by which he can take the debt, or bring it into account with the mortgagor. (Irving v. Cox, Pre. Cha. 71; Amhurst v. Dawling, 2 Vern. 401; Hungerford v. Clay, 9 Mod. 1; Croft v. Powell, Com. 609; Galley v. Jelby, Str. 403; Mackenzie v. Robinson, 3 Atk. 559; overruling Gardener v. Griffiths, 2 P. Wms. 403; see also Dyer v. Lord Craven, 1 Dick. 662; Gubbins v. Creed, 2 Sch. & Lef. 218; 1 Fonbl. Eq. 25, 258; and 1 Mad. Pract. 513, 2nd edit.; Coote Mort. 61.) The best mode of rendering an advowson available as a mortgage security is by empowering the mortgagor to sell in case of default of payment; but it must be borne in mind that this power can only be exercised whilst the advowson is full, it being deemed an act of simony to sell during an avoidance. To provide against this contingency, it will be No. VIII. Fee of an Advowson by with usual 2. WHEREAS the said (mortgagor), being seised of an estate of Mortgage in inheritance in fee-simple of the advowson and right of patronage of and in the rectory of the parish of A., in the county of B., free the Patron, of all incumbrances, has requested the said (mortgagee) to advance Powers of Sale. him the sum of 1,000l., upon the security of the said premises, which the said (mortgagee) has agreed to do upon having a conveyance of the same, accompanied by a warrant of attorney by way of collateral security, made to him in manner hereinafter mentioned. Of agreement for loan. Testatum, by which mortgagor grants and confirms. Habendum. 3. NOW THIS INDENTURE WITNESSETH, that in pursuance of the said recited agreement, and in consideration of the sum of 1,000l. sterling paid by the said (mortgagee) to the said (mortgagor on the execution hereof, the receipt of which the said (mortgagor) hereby acknowledges, and therefrom doth release, exonerate and for ever discharge the said (mortgagee), his heirs, executors, administrators and assigns; HE the said (mortgagor) DOTH by these presents grant and confirm unto the said (mortgagee) and his heirs, ALL that the aforesaid advowson, donation, and right of presentation of and in the said parish of B., in the said county of D., and whereof the said (T. C.) is now incumbent, AND all rights, members and appurtenances thereunto belonging. AND all the estate, right, title, and interest, both legal and equitable, of him the said (mortgagor) therein; TOGETHER with all deeds, evidences, and writings relating to the title of the said advowson, hereditaments and premises in the custody of the said (mortgagor), or which he can procure without suit. 4. TO HAVE AND TO HOLD the said advowson, donation and right of patronage and presentation to the said rectory, and appurtenances, unto and to the use of the said (mortgagee), his heirs and advisable to insure the incumbent's life, which can now be done in most instances, as many respectable insurance offices will undertake to insure even unhealthy lives. Added to this, a clause may be inserted, as in the above form, that in case of the benefice becoming void during the continuance of the mortgage security, the mortgagor will, as soon as possible, present some clerk who shall be of the age of sixty years or upwards, in order that the sale of the living may not be prejudiced by the incumbency of a too young and healthy life. No VIII. Mortgage in Fee of an assigns for ever; SUBJECT NEVERTHELESS to a proviso for redemption, and the powers, provisoes, declarations and agreements hereinafter expressed. PROVIDED ALWAYS [HERE INSERT proviso for redemption; power of sale in default; and covenant for payment of principal and interest; ut ante, No. II., clauses 6, 7, and 9, Powers of Sale. pp. 46, 47.] the Patron, with usual mortgagor that 5. AND ALSO that the said (mortgagor) is lawfully, rightfully Covenant from and absolutely seised in fee of the said advowson, hereditaments he is seised and premises, with their appurtenances. in fee. to convey. 6. AND ALSO that the said (mortgagor) now hath in himself Has good right good right to grant and confirm the said advowson, hereditaments and premises unto and to the use of the said (mortgagor), his heirs and assigns, in manner aforesaid. [ADD covenants for quiet enjoyment; freedom from incumbrances; and for further assurance ; ut unte, No. IL, clauses 11 and 12, p. 47.] bent shall die incumbent of sixty years of 7. AND, LASTLY, that in case the said advowson shall at any That if incumtime or times during the continuance of this present mortgage during mortsecurity become void by the death, resignation, or deprivation of gage security, nortgagor will the now present, or of a future, incumbent of the said living, the said (mortgagor) will, as soon as possible thereafter, present to the said rectory or parish church some fit person of the age of sixty years or age or upwards. upwards, in order that such person may be instituted and inducted parson, rector, or incumbent thereof. [INSERT Covenant from mortgagee not to exercise power of sale without giving mortgagor six months' previous notice ; ut ante, No. II., clause 13, p. 49.] IN WITNESS, &c. No. IX. MORTGAGE OF A LIVING UNDER THE PROVISIONS OF TH 1. Parties. 2. Recital of act of Parliament autho- 3. Of agreement for loan. 4. Testatum. 7. Proviso for redemption. 8. That mortgagor shall enjoy un default. Additional Forms. 5. Habendum to mortgagee for A. Form of the consent of the ord ninety-nine years. nary and patron. 6. Covenant for payment of principal B. Form of appointment of a nomin Parties. 1. THIS INDENTURE, made the day of A.D., 185 BETWEEN (mortgagor, rector or vicar, as the case may be) of, & and in the diocese of the Bishop of of the one part, a (mortgagee) of, &c., of the other part. Practical observations. (a) The statute 17 Geo. 3, c. 52, authorizes the incumbent of any ecclesiastic benefice whereon there is no house of habitation, or such house is become decayed or ruinous that one year's income of the living would be insufficient repair it, with the consent of the ordinary and patron, to borrow money eith to build a new house or to repair the old one, and for that purpose to mortga the glebe land, tithes, and other profits of the living for the term of twenty-fi years, or until the money so to be borrowed, with interest for the same and suc costs as may attend the recovery thereof, shall be fully paid and satisfied; mortgage deed is directed to be made in the form or to the effect and purpos whic No. IX. Mortgage of a Living under the Provisions of the Statute 17 Geo. 3, c. 52. 2. WHEREAS the said (mortgagor) pursuant to the directions of an act passed in the seventeenth year of the reign of his late Majesty King George the Third, intituled An Act to promote the Residence of the Parochial Clergy, by making provision for the more speedy and effectual building, rebuilding, repairing or purchasing Houses and other necessary Buildings and Tenements, for the use of Recital of act their Benefices, hath obtained the consent of the ordinary of the of Parliament authorizing said diocese, and the patron of the said church and living, (b) to mortgage. borrow and take up at interest the sum of 600l., to be laid out and expended in building, rebuilding [or repairing] (as the case may be), the parsonage house, and other necessary offices upon the glebe lands belonging to the said parish church, as appears by an instrument signed by the said ordinary and patron hereunto annexed. contained in the schedule annexed to the said act, and of which the above precedent is a verbatim copy: (sect. 1.) Every mortgagee is directed to execute a counterpart of the mortgage, which is to be kept by the incumbent: (sect. 2.) The act also provides that, on failure of payment of principal and interest for forty days after the same becomes due, the mortgagee may distrain for it: (sect. 3.) (b) The following is the form directed by the act, and which must be written on parchment; it must be annexed to the mortgage deed. , in the a of the ordinary and patron. A. “(A. B.), rector (or vicar, as the case may be) of the parish Form of consent (or chapelry, or perpetual curacy, as the case may be) of county of under the jurisdiction of the ordinary, having produced to us the said ordinary, and (name of patron), patron of the said church and living, a certificate under the hand of skilful and experienced workman or surveyor, of the state and condition of the buildings upon the glebe belonging to the church (or chapel, or perpetual curacy, as the case may be) and of the value of the timber and other materials thereupon fit to be sold or employ ed about such buildings, and also a plan made by the said of the work to be done by new buildings and repairs upon the said glebe, and an estimate of the expense attending the same, after applying the said materials, or the money to arise from the sale thereof, in such buildings and repairs; and also of a particular account in writing, signed by the said (A. B.), of the annual profits of such living, and of the rents, stipends, taxes and other out |