Witnesseth.

FREC. IX. trust thereof in the meantime, p. 411. AND THIS INDRE ALSO WITNETH that in further psuance, &c., and in conson of the premes the sd D., as mtgee (see note (a), last page), Release of at the request of the sd A., doth hby rele unto the sd E., his copyholds. hrs and assigns, ALL and singular the hereds hby covenanted

to be surrendered, discharged from all principal monies and interest secured by, and all claims under the sd indre of mtge of, &c., [Acknowledgment [and undertaking] by B. and C., and by D. as to muniments retained by them respectively, p. 392, see p. 407, note (k)]; Covenant by E. with A. to pay rent and perform covenants of lease, p. 393.

PREC. X.

X.

CONVEYANCE of FREEHOLDS by MORTGAGOR and MORTGAGEE to TENANTS in COMMON; the MORTGAGE being kept alive for the benefit of the purchasers (a). VARIATION where the mortgagee is dead, and his REPRESENTATIVE joins (b).

PARTIES, A., mortgagor, 1; B., mortgagee, 2; C., and D., Recitals. purchasers, 3; E., trustee for purchasers, 4. Recite mortgage

Devolution of mortgaged estates. V. & P.

(a) This precedent is an example of a method of keeping alive a mortgage as a protection to a purchaser against possible concealed incumbrances of later date, as to which, see Dav. Prec., vol. II., part 1. But this precaution is now seldom adopted. See post, Prec. XVIII.

(b) The legal estate in lands of inheritance vested in a mortgagee dying before the 1st of January, 1882 (the date of the coming into operation of the Conv. Act, 1881), devolved on his heir or devisee; but by the V. & P. Act, 1874, s. 4, the legal personal representative of a mortgagee was enabled “on payment of all sums secured by the mortgage," to convey or surrender the Act, 1871. mortgaged estate (being freehold or copyhold to which the mortgagee had been admitted); so that in the case of a mortgagee dying before

formally, including the covenants for payment of principal and PREZ. x. interest, p. 320; Contract for sale, p. 337; State of mortgage

debt, p. 340. AND WHAS it has been agrd that the sd sum Agreement. of £- the amount of principal and interest, shall be paid to the sd B. out of the sd pchase-money, and that the sd mtge shall be kept on foot for the benefit of the sd C. and D., and that the sd B. shall concur in these presents in mner hinafter appearing: NOW THIS INDRE WITNETH Witthat in psuance, &c., and in conson, &c., the rect, &c., (£

1882, the re-conveyance on discharge of the mortgage may be made either by the personal representative, or by the heir (or devisee), in whom (subject to the statutory power given to the personal representative) the legal estate remains vested, and who is not disabled by the Act from re-conveying. This enactment does not apply to a transfer of the mortgage (Re Spradbery's Mortgage, 14 Ch. D. 514), nor to a conveyance to a purchaser under the power of sale (Re White's Mortgage, W. N. 1881, p. 115), but only to a conveyance on redemption; and it is doubtful whether it would apply to the above precedent, where the mortgage debt is transferred to a trustee.

nesseth.

1881.

The clause in the Act of 1874 has been repealed by the Conv. Act, 1881, Provisiors s. 30, which enacts (as to mortgagees dying after 1881), that a mortgaged of the estate of inheritance shall, on the death of the mortgagee, and "notwith- Cony. Act, standing any testamentary disposition," vest in his personal representative in the same manner as a chattel real. Notwithstanding a doubt which has been expressed it seems clear that this section applies to copyholds. In the case therefore of a mortgagee dying after 1881, the legal estate must be conveyed by the personal representative.

In the above precedent, if the mortgagee be dead, the following alterations Variations would be required. His executor or administrator, and if he died before where the 1882, his heir or devisee, but otherwise only his executor or administrator, mortgagee will be a party of the 2nd (or 2nd and 3rd) part; see above. After the is dead. recital of the mortgage will follow recitals of the will, if any, of the mortgagee, as to the appointment of executor, and (if under the old law) the devise, if any, of mortgaged estates, - the death, and (under the old law, and if no devise), the heirship, and probate; or, if no will, his death intestate and (if under the old law) the heirship, and grant of administration. The mortgage money will be stated to be paid to the executor or administrator, by whom the mortgage debt will be assigned as mtgee," or "as personal representative" of the mortgagee, the statutory covenant against incumbrances being implied in either case. No recital should be inserted as to the heir or devisee agreeing to concur, as he is bound to do so if required. The legal estate will be conveyed by the personal representative, or by the heir or devisee as the case may be (see above), as mtgee," or (as to the former)" as personal representative."

PREC. X. paid to B., and

Assignment of

debt.

Haben

dum.

Upon trust.

Further

witnesseth. Grant.

Habendum.

To purchasers.

Subject to the mortgage.

Assign

ment of

debt on

payment.

to A.), the sd B., as mtgee (c), by the direction as well of the sd A., as of the sd C. and D., doth hby assign unto the sd E. (d), his exs, ads, and assigns, ALL THAT the sd sum of £- owing on the secy

of the sd indre of mtge of, &c., and the interest due and to accrue due thereon, and the benefit of all secs for the same: TO HOLD the same UNTO the sd E., his exs, ads, and assigns, UPON TRUST for the sd C. and D., and their respive hrs and assigns, and to assign and dispose of the same as they, the sd C. and D. and their respive hrs and assigns, shall direct, and in the meantime to permit the sd principal sum and interest to attend the inheritance of the hereds comprd in the sd mtge and hby granted, and to protect the same against all mesne incumbrances, charges, and estes, if any such there be: AND THIS INDRE FURTHER WITNETH that, in psuance, &c., and for consons afsd, the sd B., as mtgee (c), by the direction of the sd A., doth hby grant, and the sd A., as beneficial owner (c), doth hby grant and confirm unto the sd C. and D., and their respive hrs and assigns, ALL, &c., parcels, p. 344, omitting general words and estate clause, see pp. 357, 359; TO HOLD the premes hby granted UNTO AND TO THE USE of the sd C. and D., their hrs and assigns, as tenants in common, in equal shares, but subjt nevertheless to and charged with the sd sum of £ and interest hby assigned to the sd E., his exs, ads, and assigns, in trust as afsd, to the intent that the charge created by the sd indre of mtge of, &c., shall remain subsisting in equity and vested in the sd E., his exs, ads, and assigns, IN TRUST for the benefit of the sd C.

(c) See p. 365, note, 406, note (e), 417, note (e).

(d) Prior to 1882, a mortgagee could not be required to assign his debt on being paid off (Dunstan v. Patterson, 2 Phil. 345; Dav. Prec. II., part 2, 280); but by the Conv. Act, 1881, s. 15, a mortgagee, whether legal or equitable, on being redeemed by the mortgagor or any one claiming under him (see the definition of " mortgagor" in s. 2), may (unless he is in possession) be required to assign the debt and convey the mortgaged property as the person redeeming him may direct; but not unless the latter could have required a reconveyance to himself, Teevan v. Smith, Weekly N. 1882, p. 81.

and D., their respive hrs and assigns, and as a protection PREO. X. against mesne incumbrances as afsd.

IN WITNESS, &c.

XI.

CONVEYANCE of FREEHOLDS, LEASEHOLDS, and PREC. xi.
COPYHOLDS by a MORTGAGEE under a POWER OF
SALE contained in the mortgage, or the power in the
TRUSTEES and MORTGAGEES ACT, 1860, or the
CONVEYANCING ACT, 1881 (a). The mortgage of
the LEASEHOLDS having been effected by ASSIGNMENT.
VARIATIONS where it was effected by DEMISE.

PARTIES, A., mortgagee, 1; B., purchaser, 2. Recite lease Recitals. to K., mortgagor, setting out the parcels fully, p. 325; Mort- Mortgage.

(a) See the former Act (Lord Cranworth's), 23 & 24 Vict. c. 145, ss. 11-16, Statutory 32 and 33, applying to mortgages by deed, whether legal or equitable, powers of but of real or leasehold property only, executed between the 28th Aug., sale. 1860, and the end of 1881; and the latter Act, ss. 19-22, and 67 (and see the definition of "mortgage," &c., in s. 2), applying to mortgages by deed, whether legal or equitable, of any property real or personal, executed since 1881. The statutory provisions are subject in every case to the terms of the mortgage, by which they may be excluded or varied. The provisions in the Act of 1860 as to mortgages are repealed by the Act of 1881, but with a saving as to deeds previously executed (s. 71). A mortgagee selling under either Act is empowered to give receipts for the purchase-money, and the purchaser is fully protected against any irregularity (for want of notice or otherwise) in the sale, except (it is presumed), where he has express notice of it; see Parkinson v. Hanbury, 1 Dr. & Sm. 143. Under the Act of 1860, s. 15, a mortgagee selling is empowered by deed to convey the property to the purchaser for all the estate and interest which the mortgagor had power to dispose of, except that in the case of copyholds the beneficial interest only is to pass; this has been held to enable a mortgagee of leaseholds by demise to convey the whole term, Hiatt v. Hillman, 19 W. R. 694; and it would seem to follow that an equitable mortgagee (by deed) could convey the legal estate. The power in the Act of 1881 to convey to the purchaser (s. 21) is more restricted, being confined to "such estate and interest as is the subject of the mortgage,"

PREC. XI. gage, p. 320, omitting the covenant for payment, [and it was by the same indre provd, &c., set out fully the following clauses of the power of sale, the authority to sell and convey, the declaration (if any) that the nominal reversion of the leaseholds, if mortgaged by demise, should be held in trust for the purchaser, the clause protecting purchasers from irregularities in the sale, and the receipt clause (if any)]; Conditional surrender of the copyholds to A., p. 321 (b): Agreement for sale by mortgagee, see pp. 337, 338, forms I., II., VI., saying as to the leaseholds, "for all the residue now to come of the sd term thby granted [less days, and for all such este and interest in the same nominal reversion of days as the sd A. has power to assign"]; Apportionment of purchasemoney for stamp duty as to copyholds, p. 340; [Recital as to muniments, p. 341]: NOW THIS INDRE WITNETH that in psuance of the sd agreemt, and in conson, &c., the sum being the apportioned purchase-money for the freeholds and leaseholds (the rect, &c.) the sd A., as mtgee (c), [in exercise of the power vested in him by virtue of the hinbefore recited indre of mtge [and the Act 23 & 24 Vict. c. 145, or "The Conveyancing and Law of Property Act, 1881,"] and of every other power enabling him in this Grant of behalf], doth hby grant and convey unto the sd B., his hrs freeholds, and assigns, freehold parcels, p. 344, omitting general words and estate clause, see pp. 357, 359; Habendum to B. in fee, free from p. 359, free from equity of redemption, p. 364: AND THIS mortgage. INDRE FURTHER WITNETH that, in psuance of the

Witnesseth.

Further witnesseth.

Both Acts in terms only authorise assurances by deed, leaving the power to execute customary assurances of copyholds to implication. As to what is a sufficient notice of the intention to sell under the ordinary express power, see Hoole v. Smith, 17 Ch. D. 434, which it seems would not apply to the power in the Act of 1860 (see s. 13); the effect of the clause in the Act of 1881 in this respect does not seem clear (see s. 20, and the definition of "mortgagor' in s. 2).

(b) If the sale is made under the statutory power or an express power of sale in the proper form, it does not concern the purchaser to inquire into the state of the mortgage debt; and a recital as to this need not be inserted.

(c) See p. 365, note, 406 (e).