Discharge of incumbrances. Mode of application. Building. is kept alive, without prejudice to the question how the mortgage debt is ultimately to be borne (t). The Lunacy Acts contain no machinery, by means of which a conveyance of the legal estate of a married woman of unsound mind in freehold property can be obtained (u). Where a decree in a partition suit, of the estate of a lunatic tenant in tail, directed the costs to be raised out of the estate, but, instead thereof, the land was conveyed to the lunatic tenant in tail, the L.JJ. held that they had no power to authorise the committee to raise the costs by mortgage (r); but an indorsement was made on the partition deed of a declaration that the costs were to be a prior charge (y). Where the estate of a lunatic tenant in tail was charged with portions, which were decreed to be raised by sale or mortgage, a disentailing deed was directed, but not further than was requisite for the security, and the mortgage was to be only for a term of years, and without a power of sale (≈). The application for raising money by mortgage is made on petition to the Chancellor, after previous notice to the heir and next of kin, and, if the application be granted, a reference will be directed to the Master in Lunacy, and, on the master's report being confirmed, an order will be made that the committee of the estate may be at liberty, in the name and place of the lunatic, to execute the mortgage, and directions will be given as to the application of the mortgage-money; and the costs will be ordered to be taxed and paid out of the lunatic's estate (a). But the committee of a lunatic cannot incumber the estate without the special order of the L. C. (a). So the committee of a lunatic will not, in general, be allowed to invest the property of a lunatic on real security, except in very peculiar cases; as where the lunatic has an interest in the estate, or the investment is in some other manner connected with his immediate interests (b). Money belonging to the lunatic has been ordered to be lent on mortgage, for the accommodation of his family, on the condition of its being the first incumbrance on the estate (b). Money of the lunatic laid out in building or rebuilding on the lunatic's real estate will be taken as a charge for the benefit of the (t) Re Melly, W. N. 1883-121, C. A. (u) Re Stables, 4 De G. J. & Sm. 257; 10 Jur. N. S. 245. (x) Re Bloomar, 2 De G. F. & J. 154. (y) Ib., and see Singleton v. Hopkins, 1 Jur. N. S. 1199, V. C. Stuart. (2) Re Pares, 2 Ch. D. 61, C. A. personal estate (c); but ordinary repairs may be made at the expense of the personal estate (c). Where land of a lunatic is sold compulsorily, as in a partition Conversion. suit, the proceeds are real estate (d). Repairs and improvements on the estate of a lunatic tenant in Repairs. tail will not be made out of his personal estate; but the amount required will be raised by mortgage or sale of the settled estate (e). A lunatic may be made a bankrupt (ƒ). The Master in Lunacy is at liberty, without special order, to receive any proposal, or conduct any inquiry, respecting the person or property of any lunatic, and may report thereon as he shall see fit (g). If the personal estate of an infant be applied in payment of his mortgage debt, the debt will be kept alive as personal estate (h). In the case of a lunatic mortgagor who was tenant in tail without issue, with the immediate reversion in fee, the land was sold under 1 Will. IV. c. 65, for payment of his debts, and his committee was ordered to suffer a recovery on his behalf (i). deed. Where a lunatic is party to a lease or other deed, the execution Execution of is valid if the committees sign and seal in their own names (k). Allowances out of surplus income of a lunatic tenant for life Allowance to have been made to the remainderman in tail, being heir and one of the next of kin, he charging the entail with the sums paid, in favour of the personal estate (7). remainder man. allowance. A committee (a brother) to whom an allowance is made without Mortgage of account, cannot mortgage the allowance (m), but the debts properly incurred by the committee in keeping up the lunatic's establishment will be paid out of the arrears (m). Where it appears to be for the benefit of a lunatic that he should be made bankrupt, the Court will give leave to the committee, in the name of the lunatic, to file a declaration of insolvency, or to present a bankruptcy petition under the Bankruptcy Act, 1883, s. 4 (f) (n). (c) Re Harris, Shelf. Lun. 276, ed. 2; Weld v. Tew, Beat. 266. (d) Re Barker, 17 Ch. D. 241, C. A. (e) Re Gist, 5 Ch. D. 881, C. A. (f) Exp. Cahen, 10 Ch. D. 183, C. A.; Re Lee, 23 Ch. D. 216, C. A. (g) Lun. Ord. XXXVII., XXXVIII. 10 Feb. 1883. As to the mode of raising money by mortgage of a lunatic's estate, see Lun. Ord. XCV. (h) Per Lord Hardwicke, Leys v. C.-VOL. I. Price, 9 Mod. 221; per Lord Eldon, (i) Re Brand, 1 My. & K. 150. (k) Lawrie v. Lees, 7 App. C. 19; (1) Re Sparrow, 20 Ch. D. 320, C. A. R 251 Conveyance with separate defeasance. 8. Statutory mortgages 9. Covenants for title under the Conveyancing and Law of (1.) Forms of mortgage. IN its commencement, the form of the mortgage security was simple. The old mortuum vadium has been already described (a). The mortgage, which supplanted it, has been shown (b) to have been a feoffment, with a condition contained in the same deed, or sometimes in a separate deed of defeasance (executed at the same time), to be void on payment of a given sum, at a given time. On performance of the condition, the mortgagor, as before shown (c), was restored to his old estate, paramount to all the charges and incumbrances of the feoffee. The mortgage by way of absolute conveyance, with the clause of redemption in a separate deed of defeasance, being liable to be made the means of fraud, was much discountenanced by the Courts (d); the defeasance may be lost, and then an absolute conveyance is set up. The great objection to this form of mortgage was, that the estate might be conveyed to a bonâ fide purchaser without notice; in which case the right to redeem would be wholly (a) Sup. p. 7, (d) Cotterell v. Purchase, Cas. t. Talb. 61; Baker v. Wind, 1 Ves. S. 160. redemise. defeated, and the mortgagor be left to his remedy against the mortgagee for the fraud. In consequence of the discouragement it received, this mode of mortgage has become almost obsolete. In some instances the mortgage was effected by a demise and Demise and redemise; that is, the mortgagor demised the lands to the mortgagee for a long term of years at a pepper-corn rent, and then the mortgagee redemised them at a pecuniary rent, which covered the interest of the money lent, and there was a condition in the original demise that, on payment of the mortgage debt and interest by a given day, the original term should be at an end; upon which the derivative term would also cease. This mode of mortgage is also nearly obsolete; but if an estate be in hand, and there is a wish to obtain a power of distress for payment of the interest of the mortgage debt, an und erlease might still be advantageously resorted to. It would, however, it is apprehended, require the duty to be paid as on a bonâ fide lease. Instead of an underlease, a practice in some cases prevails of conveying the lands to a trustee in fee, with Conveyance to a proviso authorising him to distrain on the lands in the mort- power of gagor's possession, in case the interest shall be in arrear for a given time, with a further declaration appointing the trustee receiver during the time the lands shall be in lease. Or the mortgagor may give a power of attorney to confess judgment in ejectment in case the interest shall be in arrear, with a covenant to appoint such person a receiver as the mortgagee shall name, in case the lands shall be let. trustee with distress. modern Mortgages of freeholds, in modern practice, are either in fee or Form of for such other interest as the mortgagor has in the lands, or by mortgage. demise for a long term of years, attended with a condition in the same deed, that, if the principal and interest be paid within a given time, the lands shall be reconveyed; or that the deeds of mortgage shall be void, or that the term shall cease and determine. It has been already said, that if the former be the wording of the proviso, and the money be actually paid within the limited time, a reconveyance will nevertheless be necessary; but if the latter be the form, then on payment of the money within the period mentioned in the condition, the estate of the mortgagee will ipso facto determine. If Mortgage by the mortgage be by term of years, a covenant is usually inserted on the part of the mortgagor, that after default made, he or his heirs will, at his own cost, do all lawful acts for confirming the term, or if required, for conveying the reversion in fee to such persons as the mortgagee, his executors, administrators, or assigns shall term. between mort in fee. direct; for otherwise, the mortgagee would, on foreclosure, obtain a chattel interest only, and not the fee. The benefit resulting from the mortgage being, in the first instance, for a term of years, Comparison and not in fee, is that the security and debt devolve together; but, gage for term if the mortgage be in fee, the land descended to the heir as a trustee for the executor, and the debt vested in the executor, which, in case of the infancy or absence of the heir, created inconvenience; and in a case in Ireland (e), Lord Redesdale said he remembered a case in which the Court restrained the executor of the mortgagee from proceeding at law to compel payment of the debt on the bond, because the concurrence of the heir of the mortgagee in a reconveyance could not be obtained, and the money was ordered into Court until the executor could find the heir. Conv. Act, 1881. Disadvantage of mortgage of term. Contributory mortgagees. This inconvenience was remedied by s. 4 of a late Act (ƒ), which enabled the personal representative of a mortgagee, on being paid, to reconvey the legal fee. This s. 4 has been repealed by the Conveyancing Act, 1881 (g), in cases of deaths after the commencement of the last-mentioned Act. By s. 30 of that Act an estate or interest of inheritance, or limited to the heir as special occupant, in any hereditaments vested in a sole mortgage, devolves on his personal representative. A disadvantage of a mortgage for a term is, that the mortgagee, unless by special stipulation, is not entitled to the custody of the title deeds (h). In modern practice, mortgages for a term are almost universally abandoned (h). In a case where a tenant for life of the entire estate and the remainderman, who was considered to be entitled to a moiety, joined in mortgaging "the undivided moiety of the remainderman," and the share of the remainderman was only a fifth, it was held that only one-fifth of the interest of the tenant for life passed, though the mortgage was intended to secure in part a debt due from both the mortgagors (i). A mode of mortgage has been suggested, in cases where two persons are advancing money at the same time on one estate, and it is not wished to give preference to either, and each is desirous of having a lien on the whole estate, and yet of avoiding the intervention of a mutual trustee, viz., by limiting one moiety of the estate (e) Schoole and Wife v. Sall, 1 Sch. & Lef. 176. (f) 37 & 38 Vict. c. 78. (h) 2 Dav. Conv. 1008, ed. 3; 460, ed. 4. (i) Grieveson v. Kirsopp, 5 Beav. 283. (g) 44 & 45 Vict. c. 41. |