Lessor's covenant The grounds on which a lessor will be held to have lost his right to enforce a forfeiture and also the restrictions imposed on the exercise of his right by the Conveyancing Act, 1881 (y), have been already discussed in our chapter on estates for years. We will, therefore, only add here, with reference to another clause in the lease, that a notice requiring a lessee to repair within a certain (named) time, prevents the lessor from re-entering until after the expiration of that time (2); although the case is otherwise when the notice requires him to repair "forthwith" (a). The proviso for re-entry is followed by a covenant on the part of the lessor, that the lessee and his representatives shall, provided that they pay the rent and observe the covenants mentioned in the lease, peaceably enjoy the premises without any interruption by the lessor, his heirs, or assigns, or any person lawfully claiming through him or them. It will be noticed that this is not an absolute covenant for quiet enjoyment, and it should always be inserted in the lessor's interest; for, in the absence of any covenant, the lessor will be presumed to have given an absolute covenant for quiet enjoyment (b), and will thus be liable for the acts of persons claiming adversely to him (c), whereas the qualified covenant saves him from any risk of this kind (d). It is to be observed that the covenant for quiet enjoyment, whether in a purchase deed or in a lease, does not enlarge or increase the rights granted by the previous part of the deed. Its only effect is that an additional remedy, namely, an action for damages, is given if the lessee cannot get, (y) 44 & 45 Vict. c. 41, s. 14. (c) Bandy v. Cartwright, 22 L. J. (Ex.) 285; Hall v. City of London Brewery Co. 31 L. J. (Q. B.) 257. (d) Line v. Stephenson, 4 Bing. N. C. 678; Stanley v. Hayes, 3 Q. B. 105. or is deprived of, anything which has been previously professed to be granted or demised (e). monium. The deed concludes with the ordinary Testimonium, The Testiwhich should, if there is no counterpart, be signed by both the lessor and the lessee; but it is more usual to have a counterpart, in which case the lease is signed by the lessor, and the counterpart by the lessee. Both instruments should be properly attested, and the lease, if made of land belonging to a married woman, but not settled to her separate use, must be duly acknowledged by her. If there is any inconsistency between the lease and the counterpart, the former must, in general, prevail; but if there is a manifest error in the lease, the counterpart may be made use of in order to correct it (ƒ). visions as to 124. We may conclude these remarks by calling atten- Statutory protion to an Act of Parliament, passed with the object leases. of shortening the ordinary form of leases, but remarkable chiefly on account of its utter failure to carry out that object. This Act is the 8 & 9 Vict., c. 124, 8 & 9 Vict. c. entitled "An Act to Facilitate the Granting of Certain Leases." It contains in the schedule two parallel columns, in one of which are the ordinary clauses of a lease as drawn by conveyancers, whilst in the other are as many marginal notes, each relating to a separate clause. The Act gives to each marginal note the effect of its corresponding clause, but these notes are too concise to give sufficient information to an ordinary person looking at a lease so drawn, in order to ascertain his rights or obligations under it (g), and the Act appears to be very seldom made use of. (e) Leech v. Schweder, L. R. 9 Ch. 463, 474. (g) See also Dart. V. & P. 505. CHAPTER V. OF MORTGAGE DEEDS. WE come next to the consideration of the ordinary form of a mortgage deed of land. This, as we have noticed already, consists essentially of a conveyance of the mortgaged property to the mortgagee, with a proviso for its reconveyance when the debt secured by it is paid off. It contains, in addition, various other clauses which are necessary to give completeForm of mort- ness to the transaction. Where the subject of the gage. Freeholds. Leaseholds. mortgage is a freehold estate in land, the conveyance, ordinarily, takes the form of an absolute grant of it, subject to the proviso for redemption. On a mortgage of leaseholds, it is open to the mortgagee to take either an assignment of the whole term for which the property is held by the mortgagor or else a lease for a period a day short of the whole term. A question as to which plan is the better can only be answered by reference to the circumstances of each case. Generally speaking, if the covenants in the lease are not onerous, the mortgagee had better take an assignment of the whole term, as he thus gets the whole legal interest in it vested in himself (which is an advantage if he has to sell the property), and also obviates any risk of the lease being forfeited by the mortgagor's dealings with the reversion. On the other hand, the mortgagee, if he takes an assignment of the whole term, and even though he never enters into possession of the property, becomes liable to the lessor on all the covenants contained in the lease; since he who takes an estate, must, without reference to his object in And taking it, bear all burdens incident thereto (a). 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 (c). 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 (d). This conditional surrender, as it is called, leaves the mortgagor tenant of the manor (e), 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, (a) Williams v. Bosanquet, 1 Brod. & B. 238; overruling Eaton v. Jaques, 2 Doug. 455. (b) Halford v. Hatch, 1 Doug. 183. (c) 2 Dav. Con. 408. (d) Oxwith v. Plummer, 2 Ver. 636. (e) Doe v. Wroot, 5 East, 132. The mortgage deed. Introductory Recitals. First Witnessing Part. however, be admitted a tenant of the manor if he wishes to realise his security by a sale of the property (f). 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 (g). 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 the deed conforms to the rules which govern the corresponding portion of a purchase deed, as do also the recitals (h), 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 consists more generally, though by no means universally, of a covenant by the mortgagor which, referring to, and acknowledging the receipt of, the sum lent, 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 (f) See Flack v. Downing College, 13 C. B. 945. (g) Scriv. Cop. 100. (h) As to the construction put on recitals in a mortgage deed see Francis v. Minton, L. R. 2 C. P. 543. |