Deposit not an appointment. Mortgage by breach of a covenant against alienation. rent and covenants, he would apparently be liable in respect of his tenancy (d). (14.) Other matters. When an agreement for a lease is deposited by way of security, and a lease is afterwards granted to the depositor upon different terms, it seems that the deposit will not be affected so far as regards the particulars to which the deposit extends (e). A deposit by husband and wife of the title deeds of the wife was held not to operate as an appointment by the wife under a settlement (f). Where a lease contained a covenant on the part of the lessee not to let, or otherwise part with "the said messuage or this present indenture of lease" it was held that an equitable mortgage by deposit of the lease was not a breach of the covenant (g); and upon a petition in bankruptcy by the equitable mortgagee by deposit (unaccompanied by any written memorandum) of a lease granted to the bankrupt, his executors, administrators, and permissive assigns, the usual order for sale was made (h). A party intending to rely on the Statute of Frauds must plead the same (i). (15.) Deposit by tenant for life. A legal tenant for life of freeholds is entitled to the custody of the title deeds, and the Court will not interfere as between him and the remainderman, except where there is danger to the safety of the deeds if left in the hands of the tenant for life, or where the Court requires the deeds for the purpose of carrying out trusts relating to the property (k). In consequence of this custody, the tenant for life is enabled to mortgage the land or deposit the title deeds as apparent owner, and the bonâ fide mortgagee has such defence as a plea of purchase for value without notice is capable of affording (1). Cox v. Bishop, 8 ib. 815; 3 Jur. N. S. (d) 2 Dav. Conv. 671, ed. 3. (e) Exp. Reid, 17 L. J. Bkty. 19. (g) Doe v. Hogg, 4 D. & R. 226; Doe v. Laming, R. Y. & M. 36. (h) Exp. Drake, 1 M. D. & D. 539. (i) Ord. XIX. r. 15. (k) Leathes v. L. 5 Ch. D. 221, Jessel, M. R. And Taylor v. Sparrow, 4 Giff. 706, in which Warren v. Rudall, 1 Jo. & H. 1, and Pyncent v. P. 3 Atk. 571, are commented upon. (1) Wallwyn v. Lee, 9 Ves. 24. (16.) Generally. Registry Act, An equitable mortgage of land, the title to which is registered Land under the Land Registry Act, 1862, cannot be created by a deposit 1862. of title deeds (m); but a deposit of the land certificate has the same effect for the purpose of creating a lien upon the estate and interest of the depositor, as a deposit of the title deeds would have had before the passing of the Act (n). Under the Land Transfer Act, 1875, subject to any registered estates, charges, or rights, the deposit of the land certificate in the case of freehold land, and of the office copy of the registered lease in the case of leasehold land, shall, for the purpose of creating a lien on the land to which such certificate or lease relates, be deemed equivalent to a deposit of the title deeds of the land (0). Land Transfer laws. When the lex loci rei site does not forbid, and the parties do not Conflict of contract with reference to any other particular law, and the general law of the place is English, an equitable lien will be created upon land by a deposit of title deeds (p). The proof of the relation of the debt to the deposit, must be Proof at hearing. supported by proper evidence at the hearing (7); for if the evidence is not sufficient, there will be no inquiry (r). (17.) Whether remedy is foreclosure or sale. Whether independently of 15 & 16 Vict. c. 86, s. 48, the proper remedy in case of an equitable mortgage by deposit of title deeds was foreclosure (by analogy to a legal mortgage) or sale (by analogy to a mere charge), was a question which was much discussed (s). Many authorities were in favour of foreclosure on the ground that the creditor had a right to call for the legal estate (†). Many authorities, however, were in favour of a sale, on the (m) 25 & 26 Vict. c. 53, s. 63. (n) Ib. s. 73. (o) 38 & 39 Vict. c. 87, s. 81. (p) Varden v. Luckpathy, 9 Mo. I. A. 303. (a) Chapman v. C. 13 Beav. 308; 15 Jur. 265. (r) Holden v. Hearn, 1 Beav. 456; Kebell v. Philpot, 7 L. J. N. S. Ch. 237. (8) 2 Dav. Conv. 615, ed. 3; 615, ed. 4; 1 Fish. Mtg. 508, ed. 3; 480, (t) Malone v. Geraghty, 3 Dr. & W. Deposit of title deeds equivalent to agreement. ground that where there was no equity of redemption there could be no foreclosure, and that there was a mere charge (u). In practice, every action by a mortgagee by deposit is framed in the alternative for a foreclosure or sale. And it is now settled that the proper remedy is foreclosure (r); and that whether there is a written memorandum or not (x). Where there is an agreement for a mortgage, the remedy is 'foreclosure (y). Where there is a mere charge or lien the remedy is sale, and not foreclosure (z). The remedy of a mortgagee of an equity of redemption is foreclosure (a). A mortgagee of a reversionary interest is entitled to a foreclosure, and not a sale (b). See the Conv. Act, 1881 (c), which extends the power of the Court to sell. When there is a deposit of title deeds, the Court treats that as an agreement to execute a legal mortgage, and therefore as carrying with it all the remedies incident to such a mortgage (d). The relief to which an equitable mortgagee by deposit (accompanied by an agreement to execute a mortgage) is entitled, is either sale, or foreclosure (e). The equitable depositee is entitled clearly to a sale, where the memorandum accompanying the deposit provides that a formal mortgage shall be executed with a power of sale (ƒ), or where the action is brought against the representatives of the deceased mortgagor (g), in which case the mortgagee, as to any balance remaining due after the sale, will be entitled to stand in the place of N. R. 395; Peto v. Hammond, 30 Beav. (u) Price v. Carver, 3 My. & Cr. 161; L. J. Ch. 282, V. C. Kindersley; 2 Spence, Eq. Jur. 792 n.; Sporle v. Whayman, 20 Beav. 607. (v) Pryce v. Bury, 2 Drew. 41; affirmed 18 Jur. 967; 16 Eq. 153 n. L. C. & L. J.; James v. J. ib. 153, L. J. James. (x) Backhouse v. Charlton, 8 Ch. D. 444, V. C. Malins. (y) Frail v. Ellis, 16 Beav. 350, 3, 4; Moore v. Perry, 1 Jur. N. S. 126. (z) Tennant v. Trenchard, 4 Ch. 537, 542. (a) Richards v. Cooper, 5 Beav. 304. (b) Slade v. Rigg, 3 Ha. 35; Wayne v. Hanham, 9 ib. 62; 15 Jur. 506. (c) Page 1081. (d) Carter v. Wake, 8 Ch. D. 605, 606, Jessel, M. R. (e) York Union Banking Co. v. Artley, 11 ib. 205, M. R.; Matthews v. Goodday, sup.; Set. Dec. p. 1043, ed. 4. (f) Lister v. Turner, 5 Ha. 281. (g) Brocklehurst v. Jessop, sup. ; Connell v. Hardie, 3 Y. & C. 582. a general creditor (h), and to have his costs of suit against the representatives (i). So a sale would seem to be the proper decree when the defendants are infants (k). The dismissal of an action for redemption, brought by a mortgagor under an equitable mortgage by deposit, does not amount to foreclosure (1). The equitable depositor will, as in the common case of mortgage security, have six months given to him to redeem (m), although from the nature of the transaction no interest is payable on the principal sum (n). For form of foreclosure decree absolute on an equitable mortgage by deposit of title deeds, see (o). (18.) Other matters. possession. Where there is joint possession of mortgagor and mortgagee, the Joint deposit is valid, as in the case of a secretary of an insurance company depositing his policy with the company (p). A tenant in common, joining in a deposit without intention of Tenant in binding his moiety, in no sense makes a deposit (q). common. A memorandum stating the object of the deposit does not require Stamp. a stamp (r). Where a deposit is made as an indemnity to a surety, he is not Surety. entitled to a legal mortgage, only to a memorandum stating the purpose of the deposit (s). A receiver will be granted under an equitable deposit (†). A subsequent verbal agreement is binding without any return and deposit (u), though the first deposit was usurious (u). Receiver. In the case of loss of the deeds, verbal evidence is sufficient (y). Loss of deeds. (h) Brocklehurst v. Jessop, sup. (i) Connell v. Hardie, sup. (k) See Scholefield v. Heafield, 7 Sim. 669; Price v. Carver, sup. (1) Marshall v. Shrewsbury, 10 Ch. 250. (m) Parker v. Housefield, sup. ; Thorpe v. Gartside, sup.; Carlon v. Farlar, 8 Beav. 525. (n) Mellor v. Woods, sup. (0) Lees v. Fisher, 22 Ch. D. 283, C. A. (p) Ferris v. Mullins, 2 Sm. & G. C.-VOL. I. 378; 18 Jur. 719. (a) Burgess v. Moxon, 2 ib. 1059. (s) Sporle v. Whayman, sup. ; 24 L. J. (u) James v. Rea, 2 V. & B. 79; 5 De (y) Baskett v. Skeel, 11 W. R. 1019, V. C. Wood. A A Co-executor. Deposit by trustees. Judgment by default. Fraud of solicitor. Statute of An executor may deposit without his co-executor joining (≈). If there is an assignment of the property, there is a merger of the deposit (a). Where a trustee deposits the trust deeds, upon which the trust is apparent, with his bankers, the trust is prior to the lien (b); but the cestuis que trust are preferred, even if there is no notice (c). Where judgment by default has been taken against a mortgagorlessee for forfeiture, the equitable depositee of the lease can set aside the judgment under Ord. XXVII. r. 15, and defend in the name of the lessee, indemnifying him (d). Where the client executed a deed on the assurance of his solicitor that his deposit would be preferred, he was nevertheless postponed to a conveyance to trustees, one of whom was the solicitor, and the other an innocent party (e). If the deeds of one client are by the act of a solicitor deposited with another client fraudulently, the onus falls on the mortgagee to prove that the solicitor was the agent of the mortgagor (ƒ); and when a solicitor permits his client to deposit deeds, he cannot set up a first mortgage of which he was assignee (g). A son fraudulently and without the father's knowledge deposited in 1859 title deeds belonging to the father to secure an advance; the depositee having no notice of the fraud. In 1882 the father claimed delivery up of the deeds. The depositee refused and pleaded the Statute of Limitations: but it was held that the statute did not begin to run until the refusal (h). Where the legal mortgage deed was retained by the first mortgagee after payment, and a subsequent mortgage made to a third party, and subsequent advances by the first mortgagee, the third party was held entitled to a re-conveyance from the first mortgagee, but the latter was held entitled to retain the deed (i). (z) Sheffield Union Bk. Co. 13 L. T. N. S. 477, Winslow, Com. (a) Vaughan v. Vanderstegen, 2 Drew. 289. (b) Welchman v. Coventry Union Bk. 8 W. R. 729, V. C. Wood. (c) Stackhouse v. Countess of Jersey, 1 Jo. & H. 721; 7 Jur. N. S. 359, V. C. Wood. (d) Jacques v. Harrison, 12 Q. B. D. 165, C. A.; varying ib. 136; see N. London Land Co. v. Jacques, W. N. 1883 -187, V. C. Bacon. (e) Smith v. Evans, 28 Beav. 59; 6 Jur. N. S. 388. And see Vorley v. (f) Wall v. Cockerell, 8 W. R. 441; 10 H. L. 229; 9 Jur. N. S. 447; reversing 3 De G. & J. 737, and affirming 6 Jur. N. S. 768, R. See Exp. Hine, 3 De G. & Jo. 464; Ogilvie v. Jeaffreson, 2 Giff. 353; 6 Jur. N. S. 910, V. C. Stuart. (g) Dowle v. Saunders, 2 H. & M. 242; 10 Jur. N. S. 901, V. C. Wood. (h) Spackman v. Foster, 31 W. R. 548. (i) Young v. Whitehurst & Co. 37 L. J. Ch. 186, St. |