ment to the said C. D., his executors, administrators, or assigns, of the said sum of £4000, or such part thereof PRECEDENT XVII. FOR A MORTGAGE. a surrender of the term, though he may retain the deed of surrender in his own possession, the lien created by the deposit will extend to the whole estate freed from the incumbrance: Ex parte Bisdee, 1 M. D. & De G. 333. As to the rights of the creditors of a deceased person against the depositees of the heir-at-law, see Ex parte Baine, 1 M. D. & De G. 492. An equitable mortgagee applying in bankruptcy for the common order must bring before the Court all the parties with whom the bankrupt had deposited deeds relating to the same property, otherwise his petition will be dismissed, with costs: Ex parte Burt, 1 M. future or larger interest which the depositor may acquire. What parties must be brought before the Court by equitable mortgagees pro ceeding in bank ruptcy. gage by deposit of copies of court rolls. D. & De G. 191; but see contra Ex parte Lacon, supra, in which latter case, however, Ex parte Burt was not cited. An equitable mortgage of property held by copy of court roll may Equitable mortbe made by deposit of the copies: Ex parte Warner, 19 Ves. 302; Whitbread v. Jordan, 1 Y. & C. 303, 4 Y. & C. 563; Winter v. Lord Anson, 3 Russ. 492; Ex parte Arkwright, 3 M. D. & De G. 129; Lacon v. Allen, supra. As to the priority of a depositee of the ancestor's copy of admission over the depositee of the heir's copy of admission, see Pyke v. Webb, 6 Beav. 552. The deposit of title deeds may create a lien on fixtures, Ex parte As to fixtures. Bentley, 2 M. D. & De G. 521; Ex parte Price, 2 M. D. & De G. 518; and on furniture, Ex parte Hunt, 1 M. D. & De G. 139. It is to be observed, however, that the practice of taking mortgages by mere deposit of the muniments of title, without any statement in writing, is strongly to be reprobated. The Courts have frequently expressed their disapprobation of the practice: Ex parte Haigh, 11 Ves. 403; Ex parte Whitbread, 19 Ves. 211; Ex parte Hooper, 1 Mer. 7; and it exposes the mortgagee to the risk of losing his security, by the production of parol evidence to show that the deposit was not intended as a security at all, or only as a security to a limited amount: Ex parte Whitbread, 19 Ves. 209; Ex parte Langston, 17 Ves. 227; Ex parte Mountford, 14 Ves. 606. Moreover, in the case of bankruptcy, the mortgagee will be allowed the costs for the petition for sale only when the deposit is accompanied by an agreement in writing: Ex parte Brightwen, 1 Swanst. 3; S. C., Buck, 148; Anon., 2 Mad. 281; Ex parte Trew, 3 Mad. 172; Ex parte Warry, 19 Ves. 472; Ex parte Sykes, Buck, 349; Ex parte Reid, M. & M'A. 114; Ex parte Reynolds, 2 M. & Ayr. 104. And a memorandum in writing drawn up entirely by the clerk of an equitable mortgagee, and not signed by the depositor, is insufficient to exempt the mortgagee from paying costs: Ex parte Emmerton, A written statement should al ways accompany a deposit of deeds. PRECEDENT FOR A MORTGAGE. as shall for the time being remain unpaid, with interest for the same respectively after the rate aforesaid; and Sub-mortgage by deposit of deeds. Equitable mortgages of land in a register county, whether they require registra tion. 3 D. & C. 654; but an equitable mortgagee, without a memorandum in writing, may have costs as against the mortgagor: Connell v. Hardie, 3 Y. & C. 582. When some deposits of deeds are made with and some without agreements in writing, costs will be apportioned: Ex parte Thorpe, 3 Deac. 85. See, however, Ex parte Cobham, Id. 609, where it was held, under similar circumstances, that the creditor was entitled to his costs; and see Ex parte Ford, 3 M. D. & De G. 457. A letter written after the deposit, and referring in general terms to it, is a sufficient memorandum: Ex parte Bisdee, 1 M. D. & De G. 333; Ex parte Corlett, 1 M. D. & De G. 689. The rule as to payment of costs does not extend to insolvency: R. v. Chambers, 4 Y. & C. 54; or to proceedings in equity; see the forms of decrees in Seton on Decrees. As to deposits of title deeds by executors having also an interest, see Ashby v. Ashby, 7 B. & C. 444; Haynes v. Forshaw, 17 Jur. 930; and 11 Hare, 93. See further as to equitable mortgages by deposit of title deeds, 1 Lead Ca. Eq. 541. An equitable sub-mortgage may be created by re-deposit of deeds originally deposited as by way of equitable mortgage; and it is not necessary that the written memorandum accompanying the first transaction should be deposited on the second: Ex parte Smith, 2 M. D. & De G. 587. A mortgage by deposit only cannot be registered in a register county, because there is nothing to register; but a mortgage by agreement or memorandum has always, in practice, been registered, though the necessity or propriety of the practice has been questioned. In Sumpter v. Cooper, 2 B. & Ad. 223, where the charge was created by a deposit of deeds apparently without a written agreement, though the fact is not clearly stated in the report, Lord Tenterden, C. J., said, "the Act cannot be held to apply to an equitable mortgage. It refers only to the registration of deeds, and where there is merely a lien or equitable mortgage created by the deposit of deeds there is no instrument to be registered." In Wright v. Stanfield, 27 Beav. 8, there was a written memorandum signed by the debtor, agreeing to charge her leasehold houses in Pimlico and to execute a proper assignment of them as the creditor might direct, but there was no deposit of deeds, and Sir J. Romilly, M. R., held that the memorandum did not require registration. In a later case, however, Moore v. Culverhouse, 27 Beav. 639, where there was both a deposit of deeds and a written memorandum, the same learned that such mortgage shall contain a power of sale, and all such covenants and clauses as the said C. D., his execu PRECEDENT FOR A MORTGAGE judge held that the incumbrance required registration, and said that he thought his former decision was explainable, that the title and preamble of the Act show that it was intended to extend to all cases of incumbrances that may affect any hereditaments in Middlesex, and that the word "conveyance" in the Act applies to equitable as well as legal incumbrances. Lord St. Leonards disapproves (Sugd. 727, 14th Ed.) of the decision in Moore v. Culverhouse, and states broadly that an agreement to assign a leasehold estate as a security for a loan does not require registration. In the present state of decisions, however, it will be prudent for an equitable mortgagee to register his charge whenever it is created wholly, or is accompanied by a written instrument capable of registration. gages unde sirable; Unless as a temporary arrangement, equitable mortgages are not Equitable mortdesirable: if made (as they always should be made) by deed, so as to have the benefit of a covenant for payment of the money, they are little less expensive than a legal mortgage; and if made by agreement they must be stamped with the ad valorem stamp before they can be rendered effectual; but see supra, p. 81. They afford much less security to the creditor than proper legal mortgages; because he will be postponed to legal mortgages though subsequent in point of date to his own, unless he can show that the subsequent incumbrancers had actual or constructive notice of his own security: Buck v. Ellames, Anst. 427; Plumb v. Huitt, Id. 432; Whitbread v. Jordan, 1 Y. & C. 303; Ex parte Hardy, 2 D. & C. 323. And registration is not notice: Morecock v. Dickins, Ambl. 678. The remedies, too, of an equitable, are much less efficacious and speedy than those of a legal mortgagee, and especially where the security is enforced in bankruptcy. It is, however, seldom, if ever, that an equitable mortgagee can be advised to enforce his security in bankruptcy, even if the deposit of deeds was accompanied by a writing; since the costs of all parties, including the assignees', would be the primary charge on the proceeds of the sale; whereas if the mortgagee proceed in equity, the assignees get no costs out of the mortgaged property unless they redeem it. The proper remedy of an equitable mortgagee enforcing his security in a court of equity has been a matter of some uncertainty, but it seems now tolerably well settled that a deposit of deeds without any written agreement, or with a writing agreeing simply to charge the land, entitles the mortgagee to have his money raised by a sale or mortgage under the direction of the court, but not to foreclosure, or proper remedy in equity of equitable mort. gagee. PRECEDENT FOR A MORTGAGE. Legal mortgage, what is. Foreclosure of copyholds. Equitable mortgages by Crown debtors. Deposit of deeds with a solicitor. tors, administrators, or assigns shall require; AND the said A. B. doth hereby for himself, his heirs, executors, to a legal mortgage to himself; and that a written charge and agreement to execute a mortgage entitles the mortgagee, at his option, either to a sale, or to a legal mortgage, or to foreclosure: Pain v. Smith, 2 My. & K. 417; Parker v. Housefield, Ib. 419; Kennard v. Futroye, 2 Giff. 81; S. C., 29 L. J. Ch. 553; Tuckley v. Thompson, 29 L. J. Ch. 548; Matthews v. Goodday, 31 L. J. Ch. 282. In any case the mortgagor is entitled to have six months allowed him for payment of the money: Parker v. Housefield, supra; Thorpe v. Gartside, 2 Y. & C. 730. If the mortgagor be dead, leaving an infant heir, and the decree is for a foreclosure, the infant is allowed a day to show cause against the decree on coming of age; but if the decree be for a sale, he is not allowed a day: Scholefield v. Heafield, 7 Sim. 669; S. C., 8 Sim. 470; Price v. Carver, 3 My. &. C. 157. It has been held at law that an agreement to give "a legal mortgage" means a first mortgage, in the case of a ship: Thomson v. Clark, 1 N. R. 19; and the court expressly stated that the phrase bears that meaning when applied to land. On foreclosure of an equitable mortgage of a copyhold, the mortgagor, being the person to take the necessary steps for an effectual surrender, must pay the expense of all such steps: Pryce v. Bury, 2 Drew. 41. An equitable mortgage by a simple contract debtor to the Crown is binding on the Crown: Casberd v. Ward, 6 Price, 411; Pectore v. Philpott, 12 Price, 127; see the cases of R. v. Snow and R. v. Benson, 1 Price, 220, and more fully 6 Price, 465. But a Court of Equity cannot decree a sale if the legal estate be in the Crown: Hodge v. Attorney-General, 3 Y. & C. 343; Rogers v. Maule, 1 Y. & C. C. C. 4. An equitable mortgage by an accountant to the Crown to a person who knows that he is so is not available against the Crown: Broughton v. Davis, 1 Price, 210. Whether it is in any case available appears undecided. A solicitor cannot take the deposit of deeds as a security for future costs: Ex parte Laing, 2 M. & A. 381; and if a client deposit with his solicitor title deeds to secure a debt and costs then incurred, the Court will order the deeds to be delivered up to the client on his paying into Court a sum sufficient to cover the solicitor's claim, though in other cases it is contrary to the practice of the Court to order the delivery up of the deeds before the money is actually paid to the party entitled to it: Mills v. Finlay, 1 Beav. 560. The possession of a client's title deeds by his solicitor is so usual, administrators, or assigns, covenant with the said C. D., his executors and administrators, that he the said A. B. that, where a solicitor becomes an equitable mortgagee of his client, it is incumbent on him immediately to give clear and distinct notice of his interest to all persons in the visible ownership of the estate, otherwise the deposit will not avail as against third persons: Bozon v. Williams, 3 Y. & J. 150; Ex parte Cuming, 9 Ves. 115. It is to be observed, however, that the question as to whether a deposit of deeds is available as an equitable mortgage is independent of the question as to the lien which the holder of the deeds may have on them. He may have no right to call for a legal mortgage, and no interest whatever in the land to which they relate, but may still have a lien on the deeds for the money advanced, and may refuse to deliver them up: Ex parte Whitbread, 19 Ves. 211; Ex parte Allison, 1 G. & J. 210; Ex parte Pearce, Buck, 325. It seems that equitable agreements charging the property comprised in a lease, but not accompanied with a change of possession or other alteration of the property, do not work a forfeiture of the lease in equity, notwithstanding there is a clause in the lease against assignment: Bowser v. Colby, 1 Hare, 109. It was formerly held that a Court of Equity would compel the depositary of a lease to take an assignment of the legal estate, and thereby render himself liable to the rent and covenants: Lucas v. Comerford, 3 Bro. C. C. 156; S. C., 1 Ves. jun. 235; 8 Sim. 419; Flight v. Bentley, 7 Sim. 149. But it is now well established, that an equitable mortgagee by deposit of a lease is not compellable to take a legal assignment of the term, nor is he liable upon the covenants: Moores v. Choate, 8 Sim. 508; Moore v. Greg, 2 Ph. 717; Robinson v. Rosher, 1 Y. & C. C. C. 7; Cox v. Bishop, 26 L. J. 389, Ch. The right to the fixtures passes by the deposit of a lease without a written memorandum: Williams v. Evans, 23 Beav. 239. An equitable mortgagee of leasehold property must satisfy a distress for rent out of the proceeds of the sale, and can prove in bankruptcy only for the deficiency, although occasioned by the payment of the rent: Ex parte Cocks, 3 Deac. & C. 8. In what cases notice of the deposit must be The depositary of a bond does not acquire a lien on it as against the assignees of the obligee unless notice of the deposit be given to the obligor: Ex parte M'Tuck, 2 Deac. 58. So a valid equitable given. mortgage cannot be made of shares in a company by a deposit of the certificates, or by an agreement, unless notice be given to the company: Ex parte Spencer, 1 Deac. 468; Dearle v. Hall, 3 Russ. 1; Cumming v. Prescott, 2 Y. & C. 488; but the manner of making |