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sion of the lease

holds.

executors, administrators or assigns, to effect and keep on foot such insurance as aforesaid, and the said [mortgagors], or some or one of them, their or some or one of their heirs, executors, administrators or assigns, will or shall, on demand thereof, pay or cause to be paid unto the said [mortgagees], or the survivors or survivor of them, their or his executors, administrators or assigns, such sum or sums of money as they or he shall pay or expend in or about such insurance, with interest for the same after the rate of £5 per cent. per annum from the time or respective times of paying or expending the same, (such sum and sums and interest to be a charge upon the said freehold and leasehold premises, and to be recoverable in like manner with the said sum of £- and interest; and such policy or policies of insurance as aforesaid to be held subject to, with, and under the powers and provisions hereinbefore contained, so far as the same are applicable). And to assign rever also that the said [mortgagors], their executors, administrators or assigns, will, at the request in writing of the said [mortgagees], or the survivors or survivor of them, their or his executors, administrators or assigns, but at the costs of the said [mortgagors], or the survivors or survivor of them, their or his executors, administrators or assigns, make and execute such acts and deeds as the said [mortgagees], or the survivors or survivor of them, their or his executors, administrators or assigns shall require, or as their or his counsel shall advise for effectually assigning or assuring the said leasehold tenements and premises for the residue of the said term of years for which the said [mortgagors] are so possessed thereof as aforesaid, in reversion expectant on the derivative term hereinbefore created therein, either unto the said [mortgagees], or the survivors or survivor of them, their or his executors, administrators or assigns, or, at their or his option, unto such person or persons as they or he shall appoint, subject to such equities and with such powers as shall be subsisting by virtue of these presents concerning the said freehold and leasehold premises respectively, and in aid of the security

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and in the meantime to hold such

for mortgagees.

hereby made; but this covenant shall not impose upon the reversion in trust said [mortgagees], or the survivors or survivor of them, their or his executors, administrators or assigns, any obligation to become assignees or assignee of the last-mentioned term, nor subject them or him to any of the liabilities of an assignee thereof. (121) Provided NEVERTHELESS, that if the said [mortgagors], or any of them, their or any of their heirs, executors, administrators or assigns, shall upon or within

Provision for reducing the rate of interest on

punctual payment half-yearly.

Provision for quiet enjoyment till default.

day of

and

days next

day of

,80

after every or any ·
long as the said sum of £—, or any part thereof, shall remain
unpaid, tender unto the said [mortgagees], or the survivors
or survivor of them, their or his executors, administrators or
assigns, such sum as shall be equal to interest after the rate
of £4. 10s. per cent. per annum on the said sum of £-
on so much thereof as shall remain unpaid, for the preceding
half-year ending on the said

-, upon or within

day of

or

or

day of

days after which such tender shall be made, then the sum so tendered shall be accepted in satisfaction of the interest after the rate of £5 per cent. per annum, which shall have accrued due by virtue of these presents for such half-year. PROVIDED FURTHER, (122) that in the meantime until default in payment of the said sum of £, or the interest thereof, or any part of the same respectively, contrary to the true intent of these presents, it shall be lawful for the said [mortgagors], their heirs, executors, administrators or assigns, to hold and enjoy and to take the rents and profits of the said freehold and leasehold premises, without interruption or denial of or by the said [mortgagees], or any of them, their or any of their heirs, executors, administrators or assigns, but no purchaser or purchasers under the power of sale hereinbefore contained shall be in any wise affected by this proviso. PROVIDED FURTHER, that if the

(121) See Lucas v. Comerford, 8 Bro. C. C. 166.

(122) If the words with hyphens, suprà, 333, be inserted, this proviso may be omitted.

said [mortgagees], or the survivors or survivor of them, their or his heirs, executors, administrators or assigns, shall sell or contract to sell, under the power of sale hereinbefore contained, otherwise than after notice in writing of their or his intention to execute such power given to the person or some or one of the persons for the time being liable to pay the principal money and interest hereby secured, or entitled to redeem the said premises, or left at his, her, or their usual or last known place or places of abode in England, and after default made in payment of all principal money, interest and costs due upon this security at the end of six calendar months from the giving or leaving such notice, then the said [mortgagees], or the survivors or survivor of them, their or his heirs, executors, administrators or assigns, so selling or contracting to sell, shall be deemed to have thereby committed a breach of trust, and shall be liable in equity to make compensation to the said [mortgagors], their heirs, executors, administrators or assigns in respect thereof, but no purchaser or purchasers under the power of sale hereinbefore contained shall be in any wise affected by this proviso. IN WITNESS, &c.

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No. 26.

MORTGAGE, by APPOINTMENT, [or, by LEASE and RELEASE,] for a Term of Years, and also in Fee, with Power of Sale and other Powers. [A new Form.] (123)

day of

THIS INDENTURE, made the of our Lord ——, Between [mortgagor], of, &c.

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(123) The form of a mortgage security, here submitted to the profession, seeks to embrace the following objects:-1. To arm the lender himself with a legal estate, in the shape of a term for years, transmissible, along with the debt, to his personal representatives, and, of course, carrying with it the usual legal remedies by distress and ejectment. 2. To give the lender, through the medium of trustees, the additional security of the expectant ee,

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part; [mortgagee], of, &c. of the second part, &c.; and [trustees for mortgagee], of, &c. of the third part. WHEREAS

and, consequently, the right of foreclosing the fee-simple in possession. 3. To enable the lender to enforce a sale of the fee, and afford him the opportunity of becoming the purchaser. 4. To facilitate and simplify, by means of powers of appointment given to the lender, his executors, administrators and assigns, the transfer of the security to a new lender, the conveyance to a purchaser under the power of sale, and the restoration of the fee to the mortgagor on redemption. It is conceived that the adoption of the proposed form would obviate or lessen several disadvantages incident to the ordinary form of a mortgage in fee, inasmuch as-1. The immediate legal dominion over the pledge would always accompany the debt; whereas, under the ordinary form, the pledge devolves upon the real, and the debt upon the personal representative, except so far as the separation is prevented by the precaution of devising the legal fee to the executor. 2. No difficulty can possibly arise from the eventual vesting of the legal fee in an infant, feme covert, or other incapacitated person, since it may always be divested by an exercise of one or other of the powers; whereas, the present practice frequently renders it necessary to incur the expense and delay of an application to the Court of Chancery in order to obtain the legal fee. 3. By lodging the power of sale in trustees, while the lender is empowered to change the trustees at pleasure, some protection is afforded to the mortgagor against an abuse of the power, without throwing any impediment in the way of its fair exercise. 4. The difference in expense between a conveyance by lease and release and a conveyance by appointment, is saved on the redemption and transfer of the mortgage.—In short, an attempt is here made to combine the advantages of a mortgage for years, a mortgage in fee, and a conveyance in trust for sale, in one security, and that in a form more concise and convenient than the precedents in general use. It should be observed, that the limitation of the term was suggested by two considerations,-first, the expediency of investing the lender, in his own person, with the common legal remedies of a mortgagee; and, secondly, the necessity of ascertaining, by some legal criterion, the donee of the powers to appoint the use, which are given to the "assigns" of the lender, in respect of the term, assignable at law, and not in repect of the debt, assignable in equity only. (See How v. Whitfield, 1 Vent. 338; 2 Show. 57; 1 Freem. 476.) In order to guard against possible objections to the powers on the ground of remoteness, (but see Biddle v. Perkins, 4 Sim. 135; Power v. Capron, ib. 138, n.; Waring v. Coventry, 1 Mylne & Keene, 249; Boyce v. Hanning, 2 Cromp. & Jer. 334,) their continuance is limited to a life in being and twenty-one

by virtue of indentures of lease and release, dated respectively RECITALS, and days of in the year

the

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-that the fee stands limited to

mortgagor shall by

mortgagor is

for the loan.

the indenture of release being made between, &c. the inheritance in such uses as the fee-simple in possession of the hereditaments hereinafter de- deed appoint, scribed stands limited, To such uses as the said [mortgagor] shall by deed appoint, [or, AND WHEREAS, the said (mort- (or that the gagor) is seised of or entitled to the fee simple in possession seised in fee,) of the hereditaments hereinafter described]. AND WHEREAS of agreement the said [mortgagee] has agreed to lend to the said [mortgagor] the sum of £, at interest, on the security hereinafter provided. NOW THIS INDENTURE WITNESSETH, that in TESTATUM. consideration of the sum of £- paid by the said [mortgagee] to the said [mortgagor] on the execution of these presents, The said [mortgagor], in execution of the aforesaid power given to him by the said recited indentures and of all

other powers hereunto enabling him, Doth appoint that All Appointment by those messuages, &c. situate, &c. now in the occupation of

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mortgagor.

as tenant from year to year to the said [mortgagor], at Parcels. the yearly rent of £, payable half-yearly, at Lady-day and Michaelmas; Also all that other messuage, &c. Also all those closes, &c. Which messuage last-mentioned and closes are now in the personal occupation of the said [mortgagor], Together with the appurtenances to the said premises respectively belonging, shall henceforth be subject to the powers hereinafter contained, and, subject thereto shall remain to the uses following, (namely), [or, The said (mort- (Or-release by gagor) Doth grant, bargain, sell and release unto the said mortgagee.) (mortgagee), his heirs and assigns, (in his actual possession now being by virtue of a bargain and sale for a year of even date herewith, and of the statute for transferring

years, which period it is at length settled may be taken as an absolute period, (Bengough v. Edridge, 1 Sim. 172; Cadell v. Palmer, 10 Bing. 140, affirmed in Dom. Proc. 25 June, 1833); and which period exceeds the probable duration of the loan. The subsequent forms of transfer, &c. are added in order to show the the practical application of the powers contained in the principal precedent.

mortgagor to

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