power of consenting as protector), unto the said [mortgagee] and his heirs, To the only use and behoof of the said [mortgagee], his heirs and assigns for ever, freed and absolutely discharged from the estate tail of the said E. Dunn, and all other estates tail, remainders, reversions, limitations and conditions thereupon expectant or depending, but subject nevertheless to the proviso or agreement for redemption of the said hereditaments and premises hereinafter contained (that is to

say), PROVIDED ALWAYS, and it is hereby agreed and declared be- Proviso for retween and by the said E. Dunn and the said [mortgagee], and the demption. true intent and meaning of them and of these presents, nevertheless, are, that if the said E. Dunn, his heirs, executors, administrators or assigns, shall and do well and truly pay, or cause to be paid, to the said [mortgagee], his executors, administrators or assigns, at or in the common dining hall of Lincoln's Inn, in the county of Middlesex, the sum of 1,5007. of lawful money of Great Britain, with interest for the same after the rate of 51. for every 1007. for a year, on the day of, which will be in the year 18-, without any deduction or abatement whatsoever out of the same or any part thereof, for or in respect of any taxes, charges, rates, assessments, payments or impositions whatsoever (except for or on account of the present or any future tax upon property or income), then and in such case he the said [mortgagee], his heirs and assigns, shall and will at any time after such payment shall be so made as aforesaid, upon the request and at the proper costs and charges of the said E. Dunn, his heirs or assigns, re-convey the said messuages, lands, hereditaments and premises herein before expressed to be hereby granted, with their appurtenances, (subject to the estate for life of the said D. Dunn, if then subsisting,) unto the said E. Dunn, his heirs and assigns, or as he or they shall in that behalf order or direct, free from all incumbrances whatsoever, made, done or committed by the said [mortgagee], his heirs, executors, administrators or assigns, or any of them, so as for doing thereof the said [mortgagee], his heirs, executors, administrators or assigns, or any of them, be not compelled or obliged to go or travel from the place or places of his, their or any of their usual abode or dwelling: AND the said E. Dunn doth hereby for himself, his heirs, Covenant for executors and administrators, covenant with the said [mortgagee], his payment of mortexecutors, administrators and assigns, that the said E. Dunn, his gage money. heirs, executors or administrators, shall and will pay or cause to be paid to the said [mortgagee], his executors, administrators or assigns, at or in the common dining hall aforesaid, the said sum of 1,5007, of lawful money aforesaid, on the day of ——, in the year and shall and will henceforth, so long as the said sum of 1,500l. or any part thereof shall remain due and owing on the security of these presents, pay or cause to be paid to the said [mortgagee], his executors, administrators or assigns, interest for the said sum of 1,500l., or for so much thereof as for the time being shall remain unpaid, after the rate of -7. for every 100l. for a year, by equal half-yearly payments on the day of and the day of in every year, and shall and will make all and every the said payments and payment without any deduction or abatement whatsoever out of the same in respect of any present or future taxes, charges, assessments or impositions, or any other matter, cause or thing whatsoever (except the income or property tax): AND it is hereby agreed and declared (t), that if default Power for mort

(1) Where a security is made by way of mortgage with a power of sale, the donee of the power is a trustee within the rule which prohibits the purchase of trust property by the trustee. (Downes v. Grazebrook, 3 Mer. 200.)

gagee to sell estate.

shall be made in payment of the said principal sum of -l., or the interest thereon, or any part thereof respectively on the said -day of, it shall be lawful for the said [mortgagee], his executors, administrators or assigns, at any time or times after such default without any further consent on the part of the said E. Dunn, his heirs, issue or assigns, to make sale of the said hereditaments and premises hereinbefore expressed to be hereby granted, or any part or parts thereof, either together or in parcels, and either by public auction or private contract, with full power upon any such sale to make any stipulations as to title, or evidence, or commencement of title or otherwise, which the said [mortgagee], his executors, administrators or assigns, shall deem proper, and also with full power to buy in, or rescind, or vary any contract for sale of the said premises, or any part thereof, and to resell the hereditaments which shall be so brought in, or as to which the contract shall be so rescinded, without being responsible for any loss which may be occasioned thereby, and for the purposes aforesaid, or any of them, to make and execute all such agreements and assurances as he or they shall think fit: AND it is hereby agreed and declared, that upon any sale under the power of sale hereinbefore contained by the executors, administrators or assigns of the said [mortgagee, or by any other person or persons who may not be seised of the legal estate in the premises sold, the heirs of the said [mortgagee], or any other person or persons in whom the legal estate of the same premises shall be vested, shall make such assurances of the same for the purpose of carrying the sale thereof into effect as the person or persons by whom the sale shall be made shall direct: PROVIDED ALSO, and it is hereby agreed and declared, that the said [mortgagee}, his executors, administrators or assigns, shall not execute the power of sale herein before contained, unless and until he or they shall have given a notice in writing to the said E. Dunn, his heirs, executors, administrators or assigns, to pay off the monies for the time being owing on the security of these presents, or left a notice in writing to that effect at or upon some part of the said hereditaments and premises herein before expressed to be hereby granted, and default shall have been made in payment of such monies, or some part thereof, for six calendar months from the time of giving or leaving such notice, or unless and until some half yearly payment of interest which shall become due on the security of these presents, or a part of some such half-yearly payment, shall have become in arrear for the space of three calendar months after the day on which the same shall become due: PROVIDED ALSO, and it is hereby agreed and declared, that upon any sale purporting to be made in pursuance of the aforesaid power in that behalf, the purchaser or purchasers shall not be bound to see or inquire whether either of the cases mentioned in the clause or provision lastly hereinbefore contained has happened, or whether any default has been

Where a mortgagor remains in possession and the money is not repaid on the day stipulated, the mortgagee, who has a power of entry and sale on nonpayment, may eject the mortgagor without notice to quit or demand of possession. (Doe d. Fisher v. Giles, 5 Bing. 421.)

Where a mortgagee of a bankrupt's estate, with a power of sale, put up the premises for sale, and then applied for leave to bid, it was held that he could not be permitted to do so, unless he waived the power, and the property were sold under the order of the Commissioners. (Ex parte Daris, 1 Mont. & Ayr. 89.)

In cases like the present it will often be advisable to convey the estate to a trustee upon the usual trusts for sale, in case the mortgage money be not paid.

made in payment of any principal money or interest intended to be hereby secured at the time hereinbefore appointed for payment thereof, or whether any money remains on the security of these presents, or as to the necessity or expediency of the stipulations subject to which such sale shall have been made, or otherwise as to the propriety or regularity of such sale, and notwithstanding any impropriety or irregularity whatsoever in any such sale, the same shall, as far as regards the safety and protection of the purchaser or purchasers, be deemed and taken to be within the aforesaid power in that behalf, and to be valid and effectual accordingly, and the remedy of the said E. Dunn, his heirs, issue or assigns, in respect of any breach of the clause or provision lastly herein before contained, or of any impropriety or irregularity whatsoever in any such sale, shall be in damages only: AND it is hereby further agreed and declared, that the said [mortgagee], his executors, administrators and assigns, shall hold the monies which shall arise from any sale made in pursuance of the aforesaid power in that behalf upon trust in the first place, by, with or out of the same monies to reimburse himself or themselves, or pay and discharge all the costs and expenses incurred in or about such sale, or otherwise in respect of the premises; and in the next place to apply such monies in or towards satisfaction of all and singular the monies for the time being due or owing on the security of these presents, and then to pay the surplus (if any) of the said monies which shall arise from such sale unto the said E. Dunn, his heirs or assigns: AND it is hereby also agreed and declared that the aforesaid power of sale may be exercised by any person or persons who for the time being shall be entitled to receive and give a discharge for the monies for the time being due or owing on the security of these presents: PROVIDED ALSO, and it is hereby agreed and declared, that the aforesaid power of sale, or anything herein contained, shall not in anywise prejudice or affect the right of foreclosure: PROVIDED ALWAYS, and it is hereby agreed and declared, that the said [mortgagee], his executors, administrators or assigns, shall not be answerable or accountable for any involuntary losses which may happen in or about the exercise or execution of the aforesaid power and trusts, or any of them: AND the said E. Dunn doth Covenants for for himself, his heirs, executors and administrators, covenant, promise, title by mortgrant and agree with and to the said [mortgagee], his heirs and gagor. assigns, by these presents, in manner following, (that is to say,) that he the said E. Duun is, at the time of the sealing and delivery of these presents, lawfully and rightfully seised of or entitled to an estate of inheritance in fee tail in remainder expectant on the decease of the said D. Dunn of and in the said messuages, lands, hereditaments and premises herein before expressed to be hereby granted with their appurtenances, without any condition, trust, power of revocation or limitation of any use or uses, or other restraint, cause, matter or thing whatsoever, to alter, change, charge, incumber, lessen, determine, defeat or make void the same estate; and that he the said E. Dunn now hath in himself, with the consent of the said D. Dunn, so given as aforesaid, good right, full power, and lawful and absolute authority to grant, dispose of, and convey all the said messuages, lands, hereditaments and premises herein before expressed to be hereby granted, with their appurtenances, unto and to the use of the said [mortgagee], his heirs and assigns, in manner aforesaid, according to the true intent and meaning of these presents: AND ALSO, that if default shall be made in For quiet enjoythe payment of the said sum of 1,500l. and interest or any part thereof, ment after decontrary to the aforesaid proviso and covenant for payment of the same, and the true intent and meaning of these presents, then and in such case it shall and may be lawful to and for the said [mort

fault.

brances.

ance.

gagee], his heirs or assigns, at any time or times thereafter and after the decease of the said D. Dunn, into and upon all and every the said messuages, lands, hereditaments and premises hereinbefore expressed to be hereby granted, or any of them, or any part or parts thereof, to enter, and the same from thenceforth peaceably and quietly to have, hold, occupy and enjoy, and receive and take the rents, issues and profits thereof, to and for his and their own use, without any let, trouble, interruption or disturbance whatsoever, of, from or by the said E. Dunn, his heirs, issue or assigns, or any other person or persons whomsoever, any estate, right, title or interest, having or lawfully or equitably claiming, or to have or lawfully or equitably claim in or to the said messuages, hereditaments and premises, or any of them, or any part or parts thereof (save and except the estate for life of the said D. Dunn, and such leases as shall have been granted by him in pursuance of the power for that purpose given to him by the said recited Free from incum- indenture of release): AND that the free and clear, and freely and clearly and absolutely acquitted, exonerated and discharged or otherwise by the said E. Dunn, his heirs, executors or administrators, saved, protected, kept harmless and indemnified of, from and against all and all manner of former and other gifts, grants, bargains, sales, jointures, dowers, right and title of dower, mortgages, uses, wills, entails, annuities, rent-charges, rent seck and arrears of rent, fines, issues, amerciaments, statutes, recognizances, judgments, executions, extents, seizures, sequestrations, and all other estates, titles, troubles, charges and incumbrances whatsoever (except the estate for life of the said D. For further assur- Dunn and such leases as aforesaid). AND MOREOVER, that if default shall be made of or in payment of the aforesaid sum of 1,500l. and interest or any part thereof, contrary to the aforesaid proviso and covenant for the payment of the same, and the true intent and meaning of these presents, then and in such case he the said E. Dunn and his heirs and issue, and all and every other persons and person whomsoever having, or lawfully or equitably claiming, or who shall or may have, or lawfully or equitably claim, any estate, right, title or interest, of, in or to the said messuages, lands, hereditaments and premises herein before expressed to be hereby granted, or any of them, or any part or parts thereof (save and except the said D. Dunn in respect of his life estate, and the persons entitled for the time being to such leases as are hereinbefore excepted in respect thereof) shall and will from time to time and at all times thereafter, upon the request of the said [mortgagee,] his heirs, executors, administrators or assigns, as to such parts of the same hereditaments and premises as for the time being shall not under the power of sale herein contained have been absolutely sold and conveyed or the equity of redemption wherein shall not have been absolutely foreclosed at the costs and charges of the said E. Dunn, his heirs, executors or administrators, and as to such parts thereof as for the time being shall have been so sold or the equity of redemption wherein shall have been absolutely foreclosed at the costs and charges of the person or persons requiring the same, make, do and execute, or cause and procure to be made, done and executed, all and every such further and other lawful and reasonable acts, deeds, matters, things, conveyances and assurances in the law whatsoever, for the further, better, more perfectly and absolutely granting, conveying and assuring all the said messuages, lands, hereditaments and premises herein before expressed to be hereby granted with their appurte nances, unto and to the use of the said [mortgagee], his heirs and assigns for ever, free from all incumbrances except as before excepted, as by the said [mortgagee], his heirs or assigns, or his or their counsel Proviso for most in the law, shall be reasonably devised or advised and required: PRO

VIDED ALSO, and it is hereby agreed and declared between and by the gagor's enjoyment said [mortgagee] and the said E. Dunn, that after the decease of the until default. said D. Dunn it shall and may be lawful to and for the said E. Dunn, his heirs and assigns, peaceably and quietly to have, hold, occupy, possess and enjoy all the said messuages, lands, hereditaments and premises hereby granted, or expressed and intended so to be, with their appurtenances, and to receive and take the rents, issues and profits thereof to his and their own use, until default shall be made in payment of the said sum of 1,500l. and interest, or some part thereof respectively, contrary to the aforesaid proviso or covenant for payment of the same, and the true intent and meaning of these presents, without any let, suit, trouble, interruption or disturbance whatsoever, of, from or by the said [mortgagee], his heirs or assigns, or by any other person or persons whomsoever lawfully claiming or to claim by, from or under him, them or any of them (u). PROVIDED ALWAYS, and it is hereby Proviso to negaagreed and declared, that none of the powers and incidents conferred tive appointment or annexed to the estates or charges of mortgagees by an act passed of receiver. in the session held in the 23rd & 24th years of the reign of Queen Victoria, intituled, "An Act to give to Trustees, Mortgagees and Others, certain Powers now commonly inserted in Settlements, Mortgages and Wills" (x) shall take effect or be exerciseable so far as the same act confers a power to appoint or obtain the appointment of a receiver of the rents and profits of the whole or any part of the hereditaments herein before expressed to be hereby granted. IN WITNESS,

&c.

(u) This deed must be inrolled in Chancery within six calendar months after its execution; see ante, p. 365, s. 41. The last proviso is now usually omitted.

(x) See this act, ante, ss. 17-23, 32, pp. 704, 707.

No. XVII.

day of

-

CONVEYANCE for Barring an Equitable Entail affecting an Estate which had been directed to be sold, and the Produce invested in the Purchase of other Lands to be entailed, by the Party who would have been Tenant in Tail of the Lands to be purchased, and by the Heir at Law of the surviving Trustee for Sale. (See 3 & 4 Will. 4, c. 74, s. 71, ante, p. 385.) THIS INDENTURE, made the A.D. 18-, between Parties. C. Crow, of &c. esq., the eldest son of J. Crow, late of &c., esq., deceased, of the first part; J. Daw, of &c., the eldest son and heir at law of M. Daw, late of &c., the surviving trustee named in the indentures of lease and release hereinafter recited, of the second part; and [releasee] of the third part: WHEREAS by indentures of lease and re- Recital of conlease, bearing date respectively on or about the 6th and 7th days of veyance of estates June, 1831, the release being made or expressed to be made between to trustees upon [parties], the messuages, lands and hereditaments hereinafter described and intended to be hereby granted and released were duly conveyed and assured unto and to the use of the said M. Daw and A. B., their heirs and assigns for ever, in trust to sell and dispose of the same hereditaments in manner therein mentioned: AND by the said indenture of release it was declared and agreed that the said [trustees], their heirs, executors, administrators and assigns, should stand and be possessed of, and interested in, the sum or sums of money to arise or be

trust to sell.