WITH SALE. as to monies sale. said, or that such sale or disposition was unnecessary and OF FREEimproper: AND IT IS HEREBY FURTHER AGREED AND DECLARED, HOLDS, that the said C. D., his executors, administrators and assigns, POWER OF shall stand possessed of the monies which shall arise from any such sale or sales as aforesaid, upon trust, in the first place, to Declaration pay, retain and satisfy unto himself or themselves, the costs and arising from expenses attending such sale or sales, and all other expenses to be incurred in the execution of the said power of sale, or relating thereto, or other the trusts and powers hereinbefore contained; and in the next place to retain or pay and satisfy unto him the said C. D., his executors, administrators or assigns, all and singular the monies which shall then be due on the security of these presents; and then upon trust to pay the residue and surplus (if any) of the said monies so to arise as aforesaid unto the said A. B., his heirs or assigns, or as he or they shall direct (a): AND IT IS HEREBY declared that the aforesaid power of sale may be exercised by any person or persons for the time being entitled to receive and give a discharge for the monies for the time being due on the security of these presents: AND IT IS FURTHER DECLARED AND AGREED, that the introduc- Power of tion into these presents of the power of sale hereinbefore con- prevent foretained shall not in any manner prejudice or affect the right of the said C. D., his executors, administrators and assigns, to - proceed to a foreclosure of the equity of redemption of the said mortgaged hereditaments and premises, or any of them, or otherwise to abridge or affect his or their, or any of their rights or remedies as mortgagee or mortgagees thereof. IN WITNESS, &C. In sale not to closure. (a) The surplus monies should be limited to the mortgagor, his Surplus heirs and assigns, because it is no part of a mortgage unnecessarily to monies. deprive the lands of their character and properties as real estate. a case where the surplus monies arising from the sale of real estate under such a power were directed to be paid to the mortgagor, his executors, administrators and assigns, the real representatives were held to be entitled. In re Clarke's Trusts, 22 L. J. 230, N. S. Ch. 2 OF FREE HOLDS, WITH газ 30 way be bought willen 2015 POWER OF SALE. [Short Form.] Parties. for mortgage. part. Consideration. No. XLI. MORTGAGE in FEE of FREEHOLDS with Power of A. B., of &c. [mortgagor], of the one part, and C. D., of &c. [mortgagee], of the other part: WHEREAS the said A. B. hath agreed to lend the said C. D. the sum of £ -, on having the repayment thereof with interest secured as hereinafter mentioned: Witnessing NOW THIS INDENTURE WITNESSETH, that in pursuance of the aforesaid agreement, and in consideration of the sum of £- to the said A. B. paid by the said C. D. immediately before the execution of these presents, the receipt Conveyance whereof he the said A. B. doth hereby acknowledge, He the of parcels. said A. B., by these presents, doth grant unto the said C. D., his heirs and assigns, ALL &c. [parcels], TOGETHER with all buildings, yards, gardens, orchards, commons, ways, liberties, easements and appurtenances to the said hereditaments and premises appertaining: AND ALL the estate and interest of him the said A. B. in and to the said hereditaments and premises, and every part thereof: TO HAVE AND TO HOLD the said hereditaments and premises hereinbefore granted unto the said redemption. C. D., his heirs and assigns, subject to the proviso for redempProviso for tion hereinafter contained: PROVIDED ALWAYS, that if the said A. B., his heirs, executors, administrators or assigns, shall, on the day of , pay to the said C. D., his executors, administrators or assigns, the sum of £, with interest for the same in the meantime, after the rate of £5 for £100, by the year, without any deduction or abatement whatsoever (except the property or income tax), then the said C. D., his heirs or assigns, will at any time thereafter, upon the request and at the costs of the said A. B., his executors, administrators or assigns, reconvey the said hereditaments and premises hereby granted unto the said A. B., his heirs and assigns, or as he or they shall in that behalf order or direct, free from all incum To hold to mortgagee, subject to redemption. 7 HOLDS, WITH POWER OF [Short Form.] brances whatsoever, made or committed by the said C. D., his OF PREE- then he the said A. B., his heirs, executors, administrators or assigns, will by equal half yearly payments, on the day of and the day of in mortgagor to and interest. mortgagor convey free brances. ther assur every year, pay interest after the rate aforesaid, on the said quiet enjoy mortgagor OF FREE- POWER OF SALE. [Short Power of sale in case of default. day of 12 ively, contrary to the aforesaid proviso for payment of the same, without any eviction, claim or demand by the said C. D., his/ 10 WITH heirs or assigns, or any person or persons claiming under or. in trust for him, them, or any of them: AND IT IS HEREBY Form.] DECLARED, that if default shall be made in payment of the said sum of £ -, or the interest thereof, or any part thereof respectively, on the next, and also for the space of calendar months next after notice in writing requiring payment thereof shall, by the said C. D., his executors, administrators or assigns, have been given to the said A. B., his executors or administrators, or left at his or their usual or then last known place or places of abode in England, it shall be lawful for the said C. D., his executors, administrators or assigns, at any time or times thereafter, without any further consent on the part of the said A. B., his heirs or assigns, absolutely to sell the hereditaments and premises hereinbefore granted, or any part or parts thereof, either together or in lots, and either by public auction or private contract, and either with or without special or other conditions relative to title or otherwise, with full power to buy in the same premises, or any of them, or to rescind any contract or contracts for the sale thereof, and to resell the same, without being answerable for any loss or diminution in price : AND TO DO, enter into, and execute all such acts, contracts and assurances as the said C. D., his executors, administrators or assigns, shall think fit: AND, IT IS HEREBY DECLARED, that the receipts in writing of the said C.-D., his executors, administrators or assigns, for the purchase money of the said hereditaments and premises, so to be sold as aforesaid, or otherwise payable to him or them by virtue of these presents, shall effectually discharge the person or persons to whom the same shall be given from being accountable for the misapplication or nonapplication, or from being bound to see to the application thereof, and that such purchaseror purchasers as aforesaid shall not be obliged to inquire whether any such default has been inquire as to made, or whether any such notice has been given, as aforesaid, or otherwise as to the propriety of any sale to be made by virtue of these presents, and shall not be affected by express or implied notice that no such default has been made, or notice given as aforesaid, or that such sale or disposition was unneces And to execute assurances. Receipts of mortgagee to be a discharge, and purchaser not required to propriety of sale. に 15 ツ HOLDS, WITH SALE. [Short Form.] of trust as to sary and improper: AND IT IS HEREBY DECLARED that the said OF FREE- ment for part. A. B., of &c. [mortgagor], of the one part, and C. D., of &c. |