[mortgagor] also empowers the said [mortgagee], his executors, administrators and assigns (127) thereupon, by deed

(127) When the legal fee is vested in the mortgagee, a power of sale given to him operates only in equity, and is in effect a trust. The power is commonly given to the mortgagee, his heirs and assigns, in respect of his estate in the land. The consequence is, that not only the legal estate, but the equitable authority and discretion, may be disjoined from the beneficial interest in the security, and become vested in an infant heir or devisee, or other incapacitated person. It may, therefore, be thought that such powers ought to be given to the mortgagee, his executors, administrators and assigns, in respect of his right to the money, in order that the personal representatives may, notwithstanding the infancy of an heir, &c. be enabled to confer a good equitable title upon a purchaser, thus reducing the inconvenience to the necessity of applying to the Court of Chancery under the Act of 1 Wm. 4, c. 60, s. 6, for a conveyance to the legal estate. This is sometimes attempted, but it is attended with more difficulty than at first presents itself; and on consideration it would seem impracticable to annex the power to the beneficial interest in the debt, which is susceptible of such various modifications and destinations in equity, while no advantage would result from annexing it to the legal interest in the debt, which is not assignable. The power in the text is given to the mortgagee, his executors, administrators and assigns, in respect of the legal term of years vested in him. (Suprà, n. (122). ) The laudable desire of preventing generally the necessity of resorting to the Court of Chancery in consequence of the devolution of the legal estate upon an infant, &c. without departing from the received form of a mortgage, recently produced the following case, which was submitted to two conveyancers of the first eminence.

Power enabling

the mortgagee to

appoint to par

chasers.

Plan proposed to

prevent the fee

from vesting in defeasibly in the infant heir, &c. of mortgagee in fee.

"It appears that the necessity of a conveyance from the incapacitated Opinion of coun"heir of a mortgagee may be obviated by a slight alteration in the form of

a mortgage deed. It is proposed that the estate should be limited to such uses and upon and for such trusts, intents and purposes as the said [mort"gagee], his executors or administrators, shall by any deed or deeds appoint, and in default of appointment, to the use of the said [mortgagee], "his heirs and assigns, subject to the proviso for redemption, as usual. "The power of sale might be given to the mortgagee, his executors or ad"ministrators, or his or their appointees or assigns. The joint opinion of "Mr. and Mr. is requested whether the proposed alteration in "the form of a mortgage deed will be effectual for the purpose intended? "And whether, viewing the question in all its bearings, it is probable that

sel, and remarks upon the plan.

Principle of the rule against perpetaities.

attested by one or more than one witness, to appoint the

"such alteration would give rise to any difficulty or inconvenience what"soever?" The following opinion was given : We are of opinion that "the clause proposed is objectionable, as tending to a perpetuity. But we "think the object may be accomplished by a power for the executors or "administrators of the mortgagee to appoint the estate, at any time during "the infancy of his heir, to any person or persons in fee, subject to the equity of redemption; and as this power will, as to the time of exercising it, be confined to the infancy of the heir of the original mortgagee, a similar power may be given to the executors or administrators of any person in whom the fee-simple may become vested by conveyance, devise or descent, to be exercised during the infancy of the heir of such person "at any time within twenty-one years from the date of the mortgage."

This opinion, so far as it relates to the question of perpetuity, will appear to be well founded when the real nature of the power is considered. A power raised by a conveyance to uses is an executory use disguised under a different name. (Suprà, n. 57.) If the power in question were to assume its true form of an executory limitation, its invalidity would probably be at once conceded; for it will hardly be contended that a limitation of the use to A. in fee, and if A. or his executors or administrators shall at any distance of time do a given act, then to B. in fee, is valid as to B.; yet that indefinite limitation differs not in substance from the uncircumscribed power of appointment. As the power is a constituent part of the mortgage security, and as a mortgage is in contemplation of equity an alienation for a limited purpose only, it may be contended that the power is in effect restrained by the nature of the transaction. But arguments drawn from the equitable character of the assurance cannot obviate the legal objection to the power. The same reasoning which went to prove the validity of the power would equally prove that a limitation to A. in fee, may be defeasible by an executory limitation to B., to take effect on the indefinite failure of the issue of C., or on the happening of any other event, how remote soever-a position contradicted by all the authorities. It is true that A. and B. concurring may alien the absolute fee, or that B., by releasing his executory interest to A., may render the fee absolute in A., so that the land is not necessarily withdrawn from commerce; but, as no disposition to be made by A., or by those claiming under him, will confer an indefeasible title, even for a day, during the suspense of the executory limitation (which limitation renders the fee, and every derivative interest, precarious), and as this state of things may continue for centuries, it is ob

Liberty to the purchase by

mortgagee to

auction.

use (128) of the hereditaments so sold (discharged from the limitations hereinbefore contained, and from all right and equity of redemption under these presents), in such manner as shall be requisite or expedient for completing the sale. And the said [mortgagor] hereby declares that the said [mortgagee], his executors, administrators or assigns, making such request as aforesaid, shall be at liberty to purchase the said hereditaments, or any part thereof, at any sale by public auction under the preceding power. And the said [mort- Direction respecting the application gagor] hereby directs that the said [trustees], or the survivor of the produce of of them, his executors or administrators, shall receive the money to arise from the sale of the said hereditaments, and in the first place defray thereout the expenses incident to the sale (including the expenses of making out and perfecting the title), and in the next place satisfy the principal money, interest and costs which shall be then due upon this security, and shall dispose of the surplus according to the ownership

the sale.

vious that if such limitations were allowed, they would induce the worst species of perpetuity-a possession in jeopardy every moment for an indefinite period of time. The books are silent as to the reason for refusing effect to limitations of this description; but the decisions establishing their invalidity appear to rest on solid grounds. The power in question is apparently obnoxious to the same objection. If, however, remoteness presented the only difficulty, it might be overcome by confining the power to a life or lives in being, and twenty-one years. But while in one point of view the power is too extensive, it is in another point of view too narrow, since it does not reach beyond the executors and administrators of the original mortgagee. The form given in the text endeavours to secure the transmission of the power to every future holder of the mortgage by attaching the power to a legal chattel interest in the land. (After this note was written, the writer was favoured with the observations contained in note (134), infrà, to which the reader is referred.)

(128) It is more correct to speak of "appointing the use of the land to A.," than of appointing the land to the use of A.," for the subject of the power is not the land, but the use; on which principle it is that when the donee of a legal power raised by a conveyance to uses, appoints to A. to the use of B,, the legal estate is executed in A., and a mere equitable interest is taken by B.

Appointment operates upon

the use.

of the equity of redemption (129). And the said [mortthe trustees shall gagor] hereby declares that the receipt of the said [trustees], or the survivor of them, his executors or administrators, for

Declaration that the receipts of

be discharges to pur hase s.

the mortgagee to appoint new

trustees.

the money to arise as aforesaid, shall exempt the person or persons paying the same from all liability in respect of the Power enabling application thereof. And the said [mortgagor] hereby empowers the said [mortgagee], his executors, administrators and assigns, when and so often as he or they shall think fit, by deed attested by one or more than one witness, to appoint any person or persons to be a trustee or trustees for the purposes of the trusts and powers hereinbefore vested in the said [trustees], in the place of the trustee or trustees or of any trustee for the time being (which trustees or trustee shall, Declaration vest by the effect of such appointment, be discharged), or of any deceased trustees or trustee; and hereby declares that on

ing the fee in the appointed trus

tees.

Distination of

the surplus pro duce of the sale.

(129) The surplus is directed to be paid, sometimes, to the mortgagor, his heirs or assigns; sometimes, to him, his executors, administrators or assigns, as personal estate; and sometimes a learned and elaborate distinction is taken between the effect of a sale in his lifetime, and a sale after his death, the surplus being given in the former case to him, his executors, administrators and assigns, as personal estate, and in the latter case to his heirs or assigns, as real estate. But it is conceived, that nothing short of the concurrence of the mortgagor in a sale, or of a very explicit declaration of his intention, would operate a conversion in equity as between his real and personal representatives; otherwise, the destination of the surplus would rest with the mortgagee, and be exposed to accident, caprice, and even collusion, contrary to every principle of equity. The power of sale is merely auxiliary to the mortgage, which in equity amounts only to a charge, leaving the surplus produce of the sale, no less than the unexhausted interest in the land, essentially real estate.-Occasionally, too, where the ownership is divided, attempts are made to relieve the mortgagee from the trouble and responsibility of distributing the surplus, by authorising pay. ment of the whole to one of the parties, his executors, administrators or assigns, without prejudice to the equities of the other claimants; but it should be recollected that in the simple case of a mortgage by a sole owner in fee, the equity of redemption may be put in settlement the next day, and that the mortgagee, with notice, will be bound to regard the equities created by such settlement; and the efficacy, under all future circumstances, of any prospective provisions of this nature may well be questioned.

Declaration ascertaining the donee or donees,

and limiting the

legal continuance

of the powers.

mortgagors with

payment of the

every such appointment, and as a legal consequence thereof, the use of the fee-simple hereinbefore limited to the said [trustees], their heirs and assigns, shall shift to and be executed in the trustees so appointed jointly, or (as the case may be) the trustees so appointed conjointly with the surviving or continuing trustee. And it is hereby declared, that the powers hereinbefore given to the said [mortgagee], his executors, administrators and assigns, are so given in respect of and as annexed to the said term of 500 years (130), and that the continuance of such powers shall, so far as the same are capable of effect at law, be confined (131) to the life of the said [mortgagee], and twenty-one years to be computed from his death. And the said [mortgagor], for himself, his heirs, Covenants by executors and administrators, hereby covenants with the said mortgagee, for [mortgagee], his executors, administrators and assigns, that debt and interest, the said [mortgagor], his heirs, executors, administrators or assigns, will pay unto the said [mortgagee], his executors, administrators or assigns, the said sum of £- —, and the interest thereof, after the rate aforesaid, at the respective times and in manner aforesaid. And also that the said [mortgagor], his not to cut heirs, executors, administrators or assigns, will not, during the continuance of the mortgage hereby made, cut any of the timber or other trees which shall be growing upon any part of the said hereditaments, without the previous consent in writing of the said [mortgagor], his executors, administrators or assigns. And also that the said [mortgagor], his heirs, for insurance executors, administrators or assigns, will, at his or their own costs, during the continuance of the mortgage hereby made, keep the buildings erected and to be erected on the said hereditaments, or any part or parts thereof, insured against loss by fire, in the sum of £, in the name or names of the said [mortgagee], his executors, administrators or assigns, in theinsurance office, or such other insurance office as he or they shall from time to time appoint, and deliver to him or them proper receipts for the premiums and duty in respect (131) Ib.

(130) Suprà, n. (123).

timber without

consent,

against fire.