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reference to his object in taking it, bear all burdens incident thereto. And since the mortgagee escapes this liability by taking a sub-lease only,2 this latter plan is preferable where the rent of the mortgaged premises is more than nominal, or where the covenants are stringent or burdensome. It may also be remarked that, in the case of mortgages of leaseholds made after the 28th August, 1860, the mortgagee can, if he sells the property under a power of sale, convey to a purchaser the reversion which had been left in the mortgagor, and is, therefore, in that respect, in as good a position as if he had taken the whole of the term.

Since copyholds do not pass by deed, a mortgage Copyholds. of them takes, in the first place, the form of a covenant by the mortgagor that he will, immediately after the execution of the mortgage deed, surrender them to the lord of the manor to the use of the mortgagee. This is followed by the formal surrender, which is duly entered on the manor rolls, but expressed to be subject to a condition that on payment by the mortgagor, on a specified date, of all sums secured by his covenants in the mortgage deed (and to which we will refer presently) the surrender shall be void and of no effect. The mortgagee has not a legal title to the copyholds unless they are thus surrendered to him; and cannot, therefore, safely part with his money until the surrender is made, since, up to that time, he is liable to be postponed to any subsequent purchaser for value who has obtained a surrender without notice of the earlier mortgage. This conditional surrender, as it is called, leaves the mortgagor

1 Williams v. Bosanquet, 1 Brod. & B. 238; overruling Eaton v. Jaques, 2 Doug. 455.

2 Halford v. Hatch, 1 Doug. 183.

3 23 & 24 Vict. c. 145, § 15; Hiatt v. Hillman, 19 W. R. 694.

4 Scriv. Cop. 839.

5 Oxwith v. Plummer, 2 Ver. 636.

The mortgage deed.

Introductory
Part.

Recitals.

First Wit

tenant of the manor,1 but prevents him from dealing with the property to the prejudice of the mortgagee, whilst it has, at the same time, the advantage of freeing the mortgagee from any liability to the lord of the manor, who, having the tenancy "full" already, has no further claims in respect of it. The mortgagee must, however, be admitted a tenant of the manor if he wishes to realize his security by a sale of the property.2 We may add here that if the mortgage is paid off, an entry of its satisfaction, made on the manor rolls, is sufficient to restore the mortgagor to his original position.3

Having premised thus much, we will, pursuing our system in other cases, go through the various clauses of an ordinary mortgage deed of freeholds in feesimple, adverting, when necessary, to the differences between such clauses and those of a mortgage deed which deals with leaseholds, or with copyholds.

The introductory part of such a deed conforms to the rules which govern the corresponding portion of a purchase deed, as do also the recitals, except that the last introductory recital, when inserted, consists of a statement of the agreement for a loan, subject to its repayment being secured in the manner to be described in the deed.

Next comes the first Witnessing Part. This connessing Part. sists more generally, though by no means universally, of a covenant by the mortgagor which, referring to, and acknowledging the receipt of, the sum lent,

1 Doe v. Wroot, 5 East, 132.

2 See Flack v. Downing College, 13 C. B. 945; 2 Dav. Con. 667. 8 Scriv. Cop. 842.

4 As to the construction put on recitals in a mortgage deed, see Francis v. Minton, L. R. 2 C. P. 543.

promises that in consideration thereof the mortgagor or his representatives will, on a specified day (usually six calendar months from the date of the deed), pay to the mortgagee, his executors, administrators, or assigns, the same sum, with interest in the mean time at a given rate per cent. We have, in our chapter on an equity of redemption, seen the advantages gained by inserting this covenant, which makes the mortgagee a specialty creditor of the mortgagor; a position which he would not hold otherwise, since the implied contract for repayment arising out of the loan raises a simple contract debt only.1

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Then follows the second Witnessing Part. This Second Witcorresponds to the operative part of a purchase deed, nessing Part. and contains the words which convey the mortgaged property, by grant or by demise or assigument, according as it is freehold or leasehold, to the mortgagee, his heirs and assigns, or to him, his executors, administrators, and assigns. If the property is copyhold, the words of conveyance find a substitute in the covenant for surrender previously mentioned. The conveyance, however, whatever its form may be, is made subject, in the case of freeholds or leaseholds, to a proviso for redemption on repayment of the sum advanced; and in the case of copyholds, to a condition for making void the surrender, corresponding with the proviso for redemption.

Estate Clause.

After the operative part comes the Parcels, which Parcels. are described in the usual way. These are followed General by the General Words, and the Estate Clause, if the Words and property is freehold; by the General Words only if the property is leasehold; and after these comes the Habendum, which limits the mortgagee's estate, ac- Habendum.

1 Yates v. Aston, 4 Q. B. 182; Isaacson v. Harwood, L. R. 3 Ch.

Effect of a mortgage deed in

fixtures.

cording to the nature of the mortgaged premises, and subject to the proviso for redemption which immediately follows.

Before noticing this proviso, however, we will call attention to one way in which the operative part of a transferring mortgage deed has a different effect, according as the deed is made by an absolute, or by a limited, owner of land. Fixtures, as we know, are personal chattels, which, having been annexed to land, become part of it, subject to a right to remove them, vested in the party who has annexed them or his representatives, as against the owner of the freehold: this right, however, being lost if not exercised either during the term or, in the case of a tenant for life, during or Mortgage by immediately after the term. Now, since a man cannot have a right as against himself, it follows that an absolute owner of land has no right in respect of fixtures as distinct from any other part of the freehold, and therefore fixtures having, in such a case, no separate existence will pass on a sale or mortgage of an estate in fee-simple without being specifically mentioned.1

an absolute owner passes fixtures

though not named.

So on the assignment of

the whole of

a limited interest.

But in the case of a limited owner of land there are two distinct interests possessed by him a limited interest in the land, an absolute interest in the fixThese last have, therefore, in such a case, a separate existence apart from the freehold, and although they will pass without being specifically mentioned on an assignment of the whole of a limited interest,2 because the person who has annexed them has, by the assignment, parted with his right of removal, which will therefore be assumed to have been passed to the transferee; the case is different where 1 Ex parte Reynal, 2 M., D. & De G. 443. 2 Longstaff v. Meagoe, 2 A. & E. 167.

erwise where

the limited interest is not entirely parted with, as, But it is othfor instance, where there is a mortgage by sub-lease: the limited for here the fixtures do not pass unless specifically interest is not entirely mentioned,1 and the right to remove them will re- parted with. main, therefore, in the mortgagor. We see then that, as against the mortgagor, the mortgagee acquires a right to the fixtures, although not named, if the mortgage is by way of grant of a fee-simple or assignment of the whole of a limited interest, but that they must be definitely mentioned in order to pass, on a mortgage by demise. But, except in the case of a grant Further step in fee-simple, something more than the operative part, however framed, is necessary to give the mort- a limited gagee a perfectly good title to the fixtures.

For by the Bills of Sale Act 1854,2 it is enacted that every bill of sale of personal chattels, made after the passing of the act, shall be registered, in manner provided by the act, within twenty-one days after the making or giving thereof: otherwise such bill of sale is, as against the trustee in bankruptcy, or the execution creditors of the giver of it, to be null and void to all intents and purposes whatever, so far as regards the property in, or right to the possession of, any personal chattels comprised in such bill of sale, which at or after the time of the giver's bankruptcy, or of his goods being taken in execution, and after the expiration of the said period of twenty-one days, shall be in his possession, or apparent possession. And under another section of this act 4 the term "bill of sale " is to include every assurance of personal chattels, and this latter term again, is to include fixtures. It is evident, therefore, that a mortgage of fixtures, unaccompanied by any mortgage of the land to which they are attached, requires, in every case, registration 1 Hawtrey v. Butlin, L. R. 8 Q. B. 290, 293.

2 17 & 18 Vict. c. 36.

8 S. 1.

4 S. 7.

required on mortgage of

interest.

Bills of Sale
Registration
Act.

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