him) for the price in an action for goods PART III. bargained and sold. (Sm. Merc. Law, 523-4.) When no price is fixed, the vendor entitled to receive their fair value, or, is in TIT. II. CAP. III. Sale without stipulation as to price. the absence of proof as to their value, the lowest price of goods of that description. (Sm. Merc. Law, 529; Morton's, V. and P. 70-1.) In case of the neglect of a purchaser to pay Neglect to for goods delivered, the vendor may recover the price, in an action for goods sold and delivered. (Sm. Merc. Law, 527.) pay price. vision for a contract by A stipulation or enactment that a sale Effect of proshall be void on breach of a condition by avoidance of one party, only renders it void at the election one party. of the opposite party. (Sm. Merc. Law, 509.) or altering a contract. ' goodwill.' Although a parol alteration of a written con- Rescinding tract is not allowable, yet it may be entirely rescinded by parol. (Sm. Merc. Law, 504.) The mere sale of the goodwill of a busi- Sale of ness will not prevent the vendor from setting up a similar business, even next door to the purchaser, or soliciting the custom of his former customers. But if he has engaged to abstain from carrying on a similar business, he will then be bound, provided the restriction be within reasonable limits. And he is not at liberty to set up a precisely similar business under the old style or firm, although his name be the only one which, with the PART III. addition of the words 'and Co.,' constitutes TIT. II. CAP. III. the old style or firm. Nor is he at liberty Contracts and cove or transfer property do not constitute a legal charge. in any other manner to hold out that he is carrying on business in continuation of, or in succession to, the business carried on by the old firm. The mere sale does not oblige him to introduce the purchaser to the customers, or to recommend him to them, or to do any one act for the purpose of giving effect to the sale. But if the vendor has expressly engaged to do any such specific act, he will be compellable to do it, or may be made to pay damages for the breach of his agreement. (Sm. Law of Prop. 553.) At law, contracts and covenants to sell, nants to sell convey, or transfer land or other property, are considered simply as personal and executory contracts and covenants, and not as attaching to the property in any manner as a present or future charge or otherwise. (Sm. Law of Prop. 556.) Vendors and purchasers of real estate and chattels real. The subject of vendors and purchasers of real estate and chattels real is one which is more peculiarly connected with Equity and Conveyancing; and the student is consequently referred to the books on those branches of law for information on that subject. CHAPTER IV. MORTGAGORS AND MORTGAGEES, PLEDGORS AND I. Mortgagors and Mortgagees.* A LEGAL mortgage is a security created by means of a transfer, by a debtor to his creditor, of the legal ownership of real or personal estate, subject to be defeated on the discharge of the debt. (Sm, Law of Prop. 340.) PART III. TIT. II. Legal mortgage defined. and mort estate and rights. So long as the mortgagor remains in Mortgagor's possession, the mortgagee's estate is not ab- gagee's solute, even at law. For by the stat. 15 & 16 Vic. c. 76, s. 219, 220, if an ejectment be brought by the mortgagee, and no suit be pending in any Court of Equity for redemption or foreclosure, the payment of principal, ~interest, and costs shall, except in certain * On this subject (which is but slightly noticed here, as being more peculiarly connected with Equity and Conveyancing), the student is referred to Smith's Law of Property, and to the works therein cited. PART III. cases, be deemed a satisfaction of the mort TIT. II. CAP. IV. gage, and the Court may compel the mortgagee to reconvey the estate. But when the mortgagor has ceased to be in possession, and there has been a default in payment of the money at the stipulated time, the estate of the mortgagee becomes absolute at law. Yet his estate is in equity treated as a mere security for the principal and interest and costs properly incurred in relation to the mortgage, and follows the nature of the debt. And although, where the mortgage is in fee, the legal estate descends to the heir of the mortgagee, yet, in equity, it is deemed a chattel interest and personal estate, and belongs to the personal representatives as assets. The mortgagee is entitled to enter into possession of the lands, and, after notice to the tenants, to recover the rents and profits, unless there is some agreement to the contrary; and if the security is insufficient, he may fell timber, and sell it, and apply the produce towards the liquidation of his debt; but, with this exception, he may not commit waste. He may grant leases, subject to the equity of redemption, and avoid, by ejectment, without notice, any leases that have been made by the mortgagor, without his concurrence, subsequently to his mortgage. He must, however, account for the rents he receives, and pay an occupation-rent for such part as he may keep in his own possession. The mortgagor is not entitled to the possession in respect of his equitable estate, unless there is some special agreement to that effect, but he holds it solely at the will of the mortgagee, who may generally at any time, without giving any prior notice, recover the same by ejectment against him, unless he is ready to pay principal, interest, and costs, or against his tenants under a tenancy created subsequently to the mortgage, and not confirmed by the mortgagee; and he is not even entitled to reap the crop. But so long as he continues in possession by the permission of the mortgagee, he is entitled to take the rents and profits in his own right without rendering any account whatever to the mortgagee, though the mortgaged property may have become an insufficient security. PART III. TIT. II. CAP. IV. by memorandum or deposit. A person may create an equitable, though Mortgage not a legal, mortgage, by a mere memorandum or a mere deposit of deeds. (Sm. Law of Prop. 343-4, 358, 372.) |