XVI. PRECEDENT XVI. CONVEYANCE in FEE by a MORTGAGOR and MORT BY MORTGAGOR AND MORTGAGEE. 1. Parties. 2. Recital of mortgage; 3.-agreement for sale; 4.-state of mortgage debt; Recital where GAGEE. THIS INDENTURE, made, &c., between A. B., of, &c. [mortgagee], of the first part, C. D., of, &c. [mortgagor], of the second part; and E. F., of, &c. [purchaser], of the third part: WHEREAS, by an indenture dated, &c., and expressed to be made between [parties], the said C. D. granted the hereditaments, hereinafter expressed to be hereby granted (a), to the use of the said A. B., his heirs. and assigns, subject to a proviso for the redemption thereof by the said C. D., his heirs, executors, administrators, or assigns, on payment by him or them to the said A. B., his executors, administrators, or assigns, of a sum of £1000 with interest, on the day of -; AND WHEREAS the said C. D. has agreed to sell to the said E. F., at the price of £1500, the fee simple in possession of the said hereditaments hereinafter expressed to be hereby granted, free from incumbrances; AND WHEREAS the said principal sum of £1000, and no more, is now owing on the security of the hereinbefore recited indenture, all interest thereon having been paid up to the date of these presents (b); AND WHEREAS, upon the treaty (a) If part only of the property mortgaged is to be comprised in the conveyance, add here "together with other hereditaments." (b) If part only of the property mortgaged is to be sold, this and the succeeding recital may have to be varied thus:'AND WHEREAS the said sum of £together with some interest thereon, is now owing upon the security of the hereinbefore recited indenture; AND WHEREAS upon the treaty for the said sale it was agreed that the sum of £, part of the said purchase-money, should be paid to the said A. B. in partial discharge of the said principal moneys and interest owing to him as aforesaid, and that the said A. B. should join in these presents in manner purchase-money. for the said sale, it was agreed that the sum of £1000, PREcedent XVI· part of the said purchase-money of £1500, should be BY MORTGAGOR paid to the said A. B. in satisfaction of the debt owing AND MORTGAGEE. to him as aforesaid, and that he should join in these 5.-debt to be presents in manner hereinafter appearing (c): NOW THIS paid off out of INDENTURE WITNESSETH, that, in pursuance of 6. Witnesseth: the said agreements, and in consideration of the sum of -consideration, £1000 upon the execution of these presents paid by the said E. F. to the said A. B. at the request of the said C. D. (the receipt whereof the said A. B. doth hereby -receipt, acknowledge); and in consideration of the sum of £500 upon the execution of these presents paid by the said. E. F. to the said C. D. (the payment and receipt in manner aforesaid of which said sums of £1000 and £500, making together the said purchase-money of £1500, the said C. D. doth hereby acknowledge); He the said A. B., 7.—grant and at the request of the said C. D., doth hereby grant and release, and he the said C. D. doth hereby grant and confirm, Unto the said E. F., his heirs and assigns [Parcels, supra, pp. 210, 213, 215, or 219-General Words, 8. Habendum supra, p. 208]; TO HAVE AND TO HOLD all the said premises herein before expressed to be hereby granted, UNTO the said release. in fee. E. F., his heirs and assigns, To THE USE of the said E. F., to purchaser his heirs and assigns, for ever, discharged from all principal moneys and interest secured by and from all claims and hereinafter appearing." Where no money is paid to the mortgagee, the following form may be used:-" AND WHEREAS the said A. B., being satisfied that the other hereditaments comprised in the hereinbefore recited indenture are a sufficient security for the whole of the principal moneys and interest intended to be thereby secured, has consented that the said sum of £1500 shall be paid to the said C. D., and has agreed to join in these presents in manner hereinafter appearing." The purchase-money will then, in the witnessing part, be expressed to be paid to the mortgagor with the consent of the mortgagee. (c) As to the purchaser's right to keep the mortgage on foot, see infra, p. 294, n. (a). . PRECEDENT XVI. demands under the said indenture of the BY MORTGAGOR AND MORTGAGEE. mortgagee; day of ; AND THE SAID A. B. doth hereby for himself, his heirs, executors, and administrators, covenant with the said E. F., his heirs and assigns [Covenant against incumbrances, supra, p. 249, and ante, Vol. i. p. 403]; AND THE SAID C. D. doth hereby for himself, his heirs, executors, and administrators, covenant with the said E. F., his heirs and assigns, that, notwithstanding anything by him the said C. D., or any of his ancestors, done, omitted, or knowingly suffered, they the said A. B. and C. D. now have power to grant and release the said premises [Covenants for title by vendor, supra, p. 209] (d). IN WITNESS, &c. (ADD a Schedule, if necessary.) PRECEDENT BY A MORT- 1. Parties. Covenants for title by a vendor who has mortgaged. XVII. CONVEYANCE by a MORTGAGEE under a POWER of THIS INDENTURE, made, &c., between A. B., of, &c. (d) These covenants must be carried back in a proper manner, so as to embrace the acts of all persons seised of or entitled to the property since the last occasion, prior to the mortgage, on which the usual covenants for title were entered into: see and compare the forms in Precedents I., II., III., IV., and V., supra. So far as the covenants for title are concerned, the purchaser would be in a better position as an assignee of the unqualified covenants contained in the mortgage deed, if the qualified covenants by the mortgagor referred to in the text were omitted; but, according to the invariable practice of conveyancers, a mortgagor selling enters into the ordinary vendor's covenants for title, and these qualified covenants no doubt supersede the unqualified covenants in the mortgage deed. (a) As to sales by mortgagees under their powers, see the Introduction to, and the notes in the second part of, this volume. And see a conveyance of freeholds and copy holds by mortgagees under a power of sale, infra, Precedent XXXVIII. day of PRECEDENT BY A MORT- 2. Recital of mortgage; [purchaser], of the other part: WHEREAS, by an indenture dated, &c., and expressed to be made between [parties], the hereditaments hereinafter expressed to be hereby granted [with other hereditaments] were assured by and by the direction of the said [mortgagor] to the use of the said A. B., his heirs and assigns, by way of mortgage, for securing the repayment by the said [mortgagor] to the said A. B. of the sum of £, with interest, on the day of then next; And it was thereby declared, that it should be lawful for the said A. B., his executors, administrators, or assigns, at any time after the said then next, without any further consent on the part of the said [mortgagor], his heirs or assigns, to sell, &c. [set out the power to sell and convey, the power to give receipts, and the clause, if any, protecting the purchaser against defects in a due exercise of the power, verbatim, without the clause restrictive of the power of sale, and without the trusts of the purchase-money]; AND 3.-agreement by mortgagee to WHEREAS the said A. B., in exercise of the said power sell. contained in the hereinbefore recited indenture, has agreed to sell to the said C. D., at the price of £ the fee simple in possession of the hereditaments hereinafter expressed to be hereby granted: NOW THIS IN- 3. Witnesseth: DENTURE WITNESSETH, that, in pursuance of the said agreement, and for effectuating the aforesaid sale, and in consideration of the sum of £-, upon the exe cution of these presents paid by the said C. D. to the consideration, said A. B. (the receipt whereof the said A. B. doth receipt, hereby acknowledge), He the said A. B. doth hereby 4-grant, grant unto the said C. D., her heirs and assigns, ALL in fee. THAT, &c. [Parcels, supra, pp. 207, 210, 213, 215, or 5.-parcels. 219, General Words, supra, p. 208; TO HAVE AND 6. Habendum TO HOLD all the said premises hereinbefore expressed to be hereby granted unto the said C. D., her heirs and assigns, To THE USE of the said C. D., her heirs and assigns, for ever discharged from all right and equity of redemption, and all claims and demands under the said indenture of the A. B. doth hereby for himself, his heirs, executors, and cumbrances. VOL. II. day of ; AND THE SAID 7. Covenant against in T PRECEDENT administrators, &c. [Covenant against incumbrances, supra, p. 249]. IN WITNESS, &c. (b). THE SCHEDULE above referred to. PRECEDENT BY HEIR AND EXECUTORS OF A 1. Parties. 2. Recital of mortgage. Sales by assigns of mortgagees and trustees. XVIII. CONVEYANCE by the HEIR and EXECUTORS of a MORTGAGEE (a) under a POWER of SALE, the Mortgagor not being a Party. THIS INDENTURE, made, &c., between A. B., of, &c. [heir of mortgagee], of the first part; C. D., of, &c., and E. F., of, &c. [executors of mortgagee], of the second part; G. H., of, &c. [purchaser], of the third part; and I. K., of, &c. [dower trustee], of the fourth part: WHEREAS, by an indenture dated, &c., and expressed to be made (b) A mortgagee only covenants that he has not incumbered the estate; but as a purchaser from him obtains the benefit of the absolute covenants for title contained in the mortgage, he is in that respect in a better position if the mortgagor be not a party than he would be if the mortgagor were a party to his conveyance. As to covenants for title where the mortgagor concurs in the sale, see supra, p. 272, n. (c). (a) If the powers to sell and give receipts in a mortgage deed be given to the mortgagee, his heirs, executors, administrators, and assigns, the administrator of an assign of the mortgagee, having obtained a conveyance of the legal estate to a trustee for himself, or being able to procure a conveyance of the legal estate to a purchaser, can exercise the powers, and make a good title: Saloway v. Strawbridge, 1 K. & J. 371; Affirmed, 25 L. J. Ch. 121. So, where an estate is given to trustees upon trust that they or the survivor of them, his heirs and assigns, shall sell, the devisees of trust estates of the survivor, can execute the trust: Hall v. May, 3 K. & J. 585. If a mortgagee with a power of sale submortgage with a declaration that the submortgagee may exercise the power, it seems doubtful if any power of sale is left in the original mortgagee: Cruse v. Nowell, 25 L. J. Ch. 709. |