Declaration that insurance shall go in aid of the principal security. Covenants (absolute) by mortgagor with mortgagee, and sepa.. rately with trastees, of such insurance within six days after the same shall become due; and that if the said [mortgagor], his heirs, executors, administrators or assigns, shall fail so to do, and the said [mortgagee], his executors, administrators or assigns, shall, with his or their own money, insure or keep insured the said buildings in the sum aforesaid, or any less sum, then the said [mortgagor], his heirs, executors, administrators or assigns, will, on demand, repay to the said [mortgagee], his executors, administrators or assigns, the money expended by him or them on such insurance, with interest after the rate of £5 per cent. per annum, which money and interest shall be covered by this security. And the said [mortgagor] hereby declares that such insurance as aforesaid shall be considered as auxiliary to the security hereinbefore made, and be disposed of accordingly. And the said [mortgagor] for himself, his heirs, executors and administrators, hereby further covenants with the said [mortgagee], his executors, administrators and assigns, and also hereby covenants (as a separate covenant) with the said [trustees], their heirs and assigns, that the said hereditaments shall or may be enjoyed and disposed of according to the limitations and provisions hereinbefore contained, without any interruption or denial, and free from all charges and incumbrances whatsoever. And also that the said [mortgagor] and every person rightfully claiming any estate or interest in the said hereditaments, will at the request of the said [mortgagee], his executors, administrators or assigns, or of the said [trustees], their heirs or assigns, but at the costs. of the said [mortgagor], his heirs, executors, administrators or assigns, until the absolute foreclosure of the equity of redemption or the sale of the said hereditaments, execute such further assurances of the said hereditaments, or any part thereof, as the said [mortgagee], his executors, administrators or assigns, or the said [trustees], their heirs or assigns, shall reasonably require. Provided nevertheless, that if the said hereditaments, or any part thereof, shall be sold under the usual qualified co- power of sale hereinbefore contained, and the said [mort -for quiet en. joyment, free from incumbrances, -for further assurance. Defeasance of absolute covenants on mortgagor's entering into the venants with a purchaser. ducing the rate of interest on punchalf-yearly. tual payment gagor], his heirs or assigns, shall join in the conveyance to the purchaser, and thereby enter into such qualified covenants for title, quiet enjoyment, freedom from incumbrances, and further assurance as the purchaser shall be entitled to require, then the absolute covenants hereinbefore entered into by the said [mortgagor], in relation to the hereditaments so sold shall thenceforth be void, Provided nevertheless, that if Provision for reupon or within twenty-one days after every or any of the days on which the half-yearly payments of interest on the said sum of £ shall become due, tender shall be made to the said [mortgagee], his executors, administrators or assigns, of the sum of £, being interest thereon at the rate of £4:10s. per cent. per annum, then the sum so tendered shall be accepted in satisfaction of the interest thereon at the rate of £5 per cent. per annum, due for the half-year preceding the day upon or within twenty-one days after which such tender shall be made. Provided also, that if the said Provision re[mortgagee], his executors, administrators or assigns, shall tween mortgagor cause the power of sale hereinbefore contained to be exer- the exercise of cised, either after payment or tender of all principal money, interest and costs due on this security, or before the expiration of calendar months from the giving or leaving of notice in writing under his or their hand or hands, of his or their intention to cause a sale of the said hereditaments (such notice to be given to the person or persons, or some or one of the persons for the time being entitled to redeem the said hereditaments, or left at his or their usual or last known place or places of abode in England), then the said [mortgagee], his executors, administrators or assigns, so causing the said power to be exercised, shall be answerable as for a breach of trust in equity, and also in damages as for a breach of contract at law. (132) And lastly, for enabling the said [mort- Admission by (132) The mortgagee is not unfrequently made to covenant that the power of sale shall not be exercised without previous notice, &c.; but a A A stricting, as be and mortgagee, the power of sale. mortgagor that he holds lands in hand as tenant to mortgagee at a fixed rent. Power to mortgagee to distrain. Suggestions by gagee], his executors, administrators and assigns, to pursue day of - covenant is objectionable, inasmuch as after a transfer of the mortgage it continues to charge the mortgagee and his assets, while it does not charge the transferee and his assets. (133) Where the mortgagor is himself the occupier, he should become tenant to the mortgagee at a fixed rent, otherwise the mortgagee cannot distrain. The rent should be equal to the annual value, and not merely to the interest of the debt :-Sometimes a power is given to the mortgagee to distrain, if the interest be in arrear; but to make the mortgagor, who departs with the legal estate, grant a power of distress to the mortgagee, who acquires that estate, seems to be at best a work of supererogation. (134) The writer has great pleasure in adding to his own speculations on Mr. R. C. Walters, the form of a mortgage in fee, (suprù, n. 123, and see n. 127,) the folfor an improved form of mortgage lowing remarks, with which he has been favoured by Mr. Robert Clayton Walters, who has devoted considerable attention to this important subject: in fee, with power of sale. "In considering the proper form of a mortgage deed, three points seem "important:-1. That the security should devolve, together with the debt, "to the personal representatives of the mortgagee. 2. That the security "should be easily convertible or made available in case the mortgagor "should make default in payment. 3. That the form should be as simple "and inexpensive as may be. " "To satisfy the first two requisitions, the personal representatives of the "mortgagee should have absolute power to sell the whole estate of the mortgagor in the mortgaged premises, free from any equity of redemp"tion. It is obvious that the present system does not accomplish this. "For instance, suppose a mortgage in fee for £250, with a power of sale "given to the mortgagee, his heirs or assigns; the mortgagee dies intestate, "or with an informal will, leaving an infant or a lunatic heir. If it be "wished to transfer the mortgaged premises, an order must be obtained "from the Court of Chancery, at an expense which can scarcely be less "than £30, and may exceed £50. This is a heavy burden upon a small estate; and such cases occur more frequently in small transactions than No. 27. TRANSFER of a MORTGAGE IN FEE with Power of Sale, to a new Lender, with a Further Charge. [New Form, founded on No. 26.] THIS INDENTURE, made the of our Lord. day of, in the year Parties. Between [mortgagee], of, &c. of the first part, [mortgagor], of, &c. of the second part, [transferee], of, &c. of the third part, and [trustees for transferee], of, &c. of "in larger ones, where the property is probably vested in a mortgagee who "makes a sufficient will. Again, though the legal estate may be conveyed "through the medium of an order of the Court of Chancery, the power of "sale cannot be exercised, [quære?] and thus the estate of the mortgagee "" may be greatly inconvenienced. "To obviate the existing inconveniences I propose that the mortgaged "premises should be conveyed,' To such uses and upon and for such "trusts, intents, and purposes as the said [mortgagee], or his executors or "administrators, within the space of twenty-one years next after his "decease, shall by any deed or deeds appoint; and in default of such appointment, to the use of the said [mortgagee], his heirs and assigns, "subject nevertheless to the proviso for redemption hereinafter contained.' "In case it is necessary that the security should be transferred, the mortgagee may appoint, and if the mortgagor join, he may confirm the "premises, To such uses and upon and for such trusts, intents and pur poses as the said [new mortgagee], or his executors or administrators, "within the space of twenty-one years next after his decease, shall by any "deed or deeds appoint; and in default of such appointment, To the use "of the said [new mortgagee], his heirs and assigns, subject nevertheless to "such right and equity of redemption as the said premises are subject to.' "The power of sale should be given to the person or persons who shall "for the time being be competent to appoint or convey the said hereby "mortgaged premises. I assume that the exercise of such a power need "not be confined to twenty-one years after the decease of the donee; for it " is not a power in the technical sense. It is not to revoke uses or to limit "uses, but merely to discharge the land from the mortgagor's equity to "redeem and in a court of equity it tends to no perpetuity, for there it may at any time be put an end to by the owner of the equity which it " controls." " : RECITALS, --of mortgage. the fourth part. WHEREAS, by an indenture (135) dated the on the day of in the year (135) If the mortgage be by lease and release, (see No. 26, suprà,) vary the recital accordingly. |