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now hath power to grant and assure the said hereditaments comprised in the said schedule in fee simple in FOR A MORTGAGE. Possession free from incumbrances, and that, until the 5. That, until said mortgage shall be made and executed, the said heremortgage be made, lands shall ditaments shall be and remain a security to the said C. D., his executors, administrators, and assigns, and stand charged with the payment to him and them of the said sum of £4000 and interest as aforesaid. IN WITNESS, &c.
be charged as a security for the moneys advanced,
TO EXERCISE A
AGREEMENT with an intended MORTGAGEE to exercise a POWER of CHARGING.
AN AGREEMENT, made, &c., between A. B., of, &c. [mortgagor], of the one part, and C. D., of, &c. [mort
Discrepancy between agreement and deposit actually made.
the mortgage does not seem to be of much consequence, provided the notice be given: Ex parte Masterman, 2 M. & A. 209; S. C., 4 Deac. & C. 751. And a mortgage of a policy of assurance is not good as against the assignees of the mortgagor, unless notice be given to the assurance society: Williams v. Thorp, 2 Sim. 257; and this doctrine applies to assignees in bankruptcy equally with particular assignees : Re Barr's Trust, 4 K. & J. 219; but the burden of proof lies on the assignees, not on the mortgagee: Ex parte Stevens, 4 Deac. & C. 117. What is a sufficient notice in these cases will be found discussed in Ex parte Waithman, 4 Deac. & C. 412; Ex parte Carlis, Id. 354; Ex parte Stright, Mont. 502; S. C., 2 Deac. & C. 314. And see also Ex parte Dobson, 2 M. D. & De G. 685; Ex parte Pooley, Id. 505; Ex parte Halifax, 2 Id. 544; Martin v. Sedgwick, 9 Beav. 333. It has been held in Ireland, that an equitable mortgagee by deposit of railway shares is entitled to priority over a prior judgment creditor of the mortgagor who has obtained an order charging the shares under the 3 & 4 Vict. c. 105, s. 23, subsequently to the mortgage: Dunster v. Glengall, 3 Ir. Eq. Rep. 47.
If the deposit be accompanied by an agreement, specifying certain documents as intended to be deposited, or certain property as intended to be charged, the security will be available as to all, notwithstanding some of the documents, or the documents relating to
gagee], of the other part: In consideration of the sum of this day lent by the said C. D. to the said A. B., (the receipt whereof the said A. B. hereby acknowledges), TO EXERCISE A the said A. B. hereby agrees with the said C. D., that he the said A. B. will forthwith, at his own expense, in exer- 2. Agreement to cise of a power given him by the will of the late X. Y., of, &c., and of every other power enabling him, charge with the payment to the said C. D., his executors, administrators, or assigns of the sum of £, all or such as the said C. D. shall require of the manors, farms, lands, and hereditaments devised by the said will; And also 3.-and to limit limit and appoint the hereditaments so to be charged unto the said C. D., his executors, administrators, and assigns, for a term of years from the date hereof, without impeachment of waste, by way of mortgage, for securing to the said C. D., his executors, administrators, and assigns, the repayment of the said sum of £—— on the next, with interest for the same in the meantime at the rate of And will covenant with the said C. D., by way of col- 4.-and to enter lateral security, for the payment of the said sum of £and interest; And also for his right to charge and mortgage the said premises in manner aforesaid, and for
per cent. per annum;
some of the property, may not be actually deposited: Ex parte Leathes, 3 Deac. & C. 112; Ex parte Edwards, 1 Deac. 611; Ex parte Halifax, 2 M. D. & De G. 544; Roberts v. Croft, 2 D. G. & J. 1. And it is apprehended, that, if the agreement specified certain documents, and more were actually deposited, the security would extend to all which were deposited, unless such a construction should be inconsistent with the tenor of the written agreement.
The priorities of equitable incumbrancers of real estate, inter se, are determined by the rule qui prior est tempore potior est jure: hence a mortgage by deposit of deeds, though without notice, is postponed to a prior equity: Manningford v. Toleman, 1 Coll. 670; and a judgment creditor without notice, though he may have obtained the legal seisin and possession of the land under an elegit, is postponed to a prior equitable mortgagee: Whitworth v. Gaugain, Ph. 728; S. C., 3 Ha. 416; and the mortgagor cannot alter the priorities of his incumbrancers by subsequently conveying the legal estate in the land to some of them: Sharples v. Adams, 1 N. R. 460.
into usual mortgage covenants,
Priorities of equitable in
TO EXERCISE A
5.—and to do all
acts necessary for further assur
further assurance; And will at his own expense execute and do all such assurances and things for effecting the purposes aforesaid, as the said C. D., his executors, administrators, or assigns shall reasonably require. IN WITNESS, &c. (a).
THE LOAN BEING
FOR MORTGAGE AGREEMENT for a TRANSFER of MORTGAGES and for a FURTHER ADVANCE. DECLARATION of TRUST of EXCHEQUER BILLS purchased with the PROPOSED LOAN pending the INVESTIGATION of the TITLE.
INVESTED IN EXCHEQUER BILLS PENDING THE INVESTIGATION OF TITLE.
AN AGREEMENT, made, &c., between A. B., of, &c. [mortgagor], of the first part, C. D., of, &c. [mortgagee],
Agreements to exercise powers.
(a) Contracts or agreements to execute powers are in equity considered as defective executions, and will, like them, be aided, if there be a sufficient consideration. "The same rules," says Lord St. Leonards (Powers, 552), “apply to each case. As against a remainderman, both are equally binding. The principal distinctions between them are, that a contract to execute a power might be enforced against the donee of the power himself, where a defective execution, without any contract, although capable of being enforced against the remainderman, could not be aided against the party who made it." Now, it is settled, that a defective execution will be aided in favour of a purchaser, mortgagee, or lessee: see the cases collected, Sugd. Pow. 533; 2 Chance on Powers, 494; and, therefore, it follows, that an agreement to exercise a power of sale, of charging, or of leasing, will also be aided, although wanting in the formalities required by the power: see Sugd. Pow. 552. And the general rule is, that an agreement to execute a power will always be enforced, and aided, if there be a sufficient consideration; that is, if the object be the benefit, either of a purchaser, mortgagee, creditor, lessee, wife, or child, or of a charity see Sugd. Pow. ch. 11, ss. 1, 2, 3; Chance on Powers, ch. 23, ss. 1, 2.
Most of the cases respecting agreements to exercise powers have arisen in regard to powers of jointuring, and there does not appear to be any case expressly as to a power of charging. But there can be no doubt that agreements to execute powers of charging would be
THE LOAN BEING
PENDING THE INVESTIGATION OF
2. Recites, that by deed of even
date, showing title claimed by mortgagor,
of the second part, and E. F., of, &c., and G. H., of, &c. PRECEDENT XIX. [trustees], of the third part: WHEREAS, by an indenture bearing even date with these presents, and expressed to be made between the said A. B. of the one part, and the said C. D. of the other part (b), after reciting that the hereditaments, the particulars whereof were mentioned in the schedule thereto, were subject to the following charges, namely, a sum of £2000 and interest to Messrs. L. and others, a sum of £3000 and interest to Mr. M., and a sum of £2000 and interest to Miss N.; and that, subject to the said charges, the said A. B. was entitled to the said hereditaments for his life, and was also entitled to certain policies of assurance on his life; And after reciting that the said C. D. had agreed to advance the sum of £8000 upon the security of a transfer of the said charges and of a mortgage of the life interest of the said A. B. in the said hereditaments and of the said policies, and that such last-mentioned mortgage was intended also to secure any further advances which might be made by the said C. D. to or on account of the said A. B., and was intended to be accompanied by the appointment of a receiver for better securing the payment of the moneys intended to be thereby secured; And after reciting that but that the title the titles to the hereditaments affected by the said fully investi charges had not been fully investigated and approved of, gated, and that some time might elapse before the said transfers
agreed to make
had not been
enforced and aided: see Lord Redesdale's Observations, 1 Sch. & Lef. 60, 62, 63; 2 Ball & B. 44.
It is, however, extremely undesirable to leave any matter open to dispute; and therefore care should always be taken that agreements to execute powers should be themselves executed and attested in the manner which the power requires: see Mortlock v. Buller, 10 Ves.
(b) It will be observed, that, for the purpose of carrying out the object of the parties, two instruments were employed in the case from which this precedent is taken; but, as the first of these instruments is so fully recited in the text that the practitioner can have no difficulty in framing it from the recital, it is unnecessary to give a precedent of that deed.
INVESTED IN EXCHEQUER BILLS
PENDING THE INVESTIGATION OF
and mortgagor had covenanted
repay the loan,
PRECEDENT XIX. and the other securities for the said sum of £8000 could be completed, and that the said C. D. had agreed to THE LOAN BEING advance the said sum of £8000 to the said A. B. upon the security in the meantime of the covenants thereinafter contained; It was witnessed, that, in consideration of the sum of £8000 paid to or on account of the said A. B. by the said C. D., the said A. B. thereby covenanted with the said C. D., that, unless the said intended mortgage for the said sum of £8000 should be completed in the meantime, he the said A. B., his heirs, executors, or administrators would, on the day of then next, pay to the said C. D., his executors, administrators, or assigns the sum of £8000, with interest for the same in the meantime at the rate of 4 per cent. per annum, and in case the said sum of £8000 or any part thereof should remain unpaid after the said day of would, so long as the same or any part thereof should remain unpaid, pay to the said C. D., his executors, administrators, or assigns interest at the rate aforesaid for the said sum of £8000, or for so much thereof as should for the time being remain unpaid, by equal half-yearly payments on the day of day of -; AND further, that he the said A. B. and all other necessary parties would, as soon as the aforesaid titles should have been investigated and approved of on behalf of the said C. D., upon the request of the said C. D., but at the cost of the said A. B., transfer and assign the aforesaid charges and all principal moneys and interest therein comprised, and the benefit of all securities for the same, and the hereditaments on which the same were charged or secured, and the life interest of the said A. B. in the said hereditaments, and the said policies of assurance, unto the said C. D., his heirs, executors, administrators, and assigns, by way of mortgage, for securing to the said C. D., his executors, administrators, or assigns the repayment of the said sum of £8000, and of any further advances by the said C. D. to or for the said A. B., with interest at the rate aforesaid; and that such mortgage should contain a power of sale, and such covenants and
and to make a
valid mortgage ;