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INVESTED IN EXCHEQUER BILLS PENDING THE INVESTIGATION OF
and that, until the mortgage, should be equitably charged with the loan,
and that the
deeds should be
provisions for payment of the said principal moneys and PRECEDENT XIX. interest, and of the premiums of the said policies, and such an appointment of a receiver and other clauses as THE LOAN BEING the Counsel of the said C. D., his executors, administrators, or assigns should reasonably require; And that, until the said mortgage should be made and executed, the premises thereinbefore covenanted to be mortgaged should 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 £8000, and of any further advances which might be made in the meantime, with interest for the same at the rate aforesaid; And further, that all the deeds and muniments of title relating to the said premises, and also the said policies of assurance, should be delivered to the said mortgagee. C. D., his executors, administrators, or assigns, and should be retained by him and them by way of deposit for securing the said sum of £8000 and further advances (if any) and interest thereon respectively as aforesaid; AND WHEREAS, with the exception of the cash balance 3. Recital that, hereinafter mentioned, the whole of the said sum of except a small sum of cash, the £8000 in the said indenture of even date herewith ex- proposed loan had been invested pressed to have been paid to the said A. B. has been laid out in the purchase of the Exchequer Bills mentioned in the schedule hereto, and the said Exchequer Bills have been deposited at the banking-house of Messrs. the names of the said E. F. and G. H., and the sum of £75, the balance of the said sum of £8000, has been placed to their account in the said banking-house: NOW 4. Witnesseth THESE PRESENTS WITNESS, and it is hereby trusts of Exagreed and declared, that the said E. F. and G. H. and chequer Bills and the survivor of them, and the executors or administrators of such survivor shall, if and as often as occasion shall require, replace the said Exchequer Bills or cause the same to be replaced by new Bills of corresponding amount, and shall receive the interest which shall accrue due on any Exchequer Bills on which interest shall be paid, and shall place such interest (after deducting expenses) to their or his account at the bankers aforesaid,
in Exchequer Bills deposited
THE LOAN BEING
PENDING THE INVESTIGATION OF
PRECEDENT XIX. and shall, if and when the securities for the said sum of £8000 and further advances and interest shall be approved of and completed, sell the said scheduled or renewed Exchequer Bills, and pay the moneys arising from such sales, and also any interest which may have been received as aforesaid, and the said balance of £75 to the persons or person entitled to the charges aforesaid, or otherwise, to or on account of the said A. B.; And, in case the said securities shall, from defect of title or other default of the said A. B. fail to be completed before the day of
next, shall convert the said scheduled. or renewed Exchequer Bills into money, and shall apply the produce of such conversion and also the said balance of £75, and any interest which shall have been received in respect of the said Bills, towards payment to the said C. D., his executors, administrators, or assigns of the said sum of £8000 and further advances, and interest, and shall pay the residue (if any) of the moneys to arise from the sources aforesaid to the said A. B., his executors, administrators, or assigns. IN WITNESS, &c.
THE SCHEDULE above referred to.
TO TRUSTEES OF
A SUM OF STOCK.
FOR A MORTGAGE AGREEMENT for a MORTGAGE (the MORTGAGEES being TRUSTEES of STOCK) providing that the STOCK shall be SOLD and the PROCEEDS invested in EXCHEQUER BILLS, which, on COMPLETION of the MORTGAGE, are to be TAKEN by the MORTGAGOR (a).
AN AGREEMENT, made, &c., between A. B., of, &c., and C. D., of, &c. [mortgagees], of the first part,
(a) This agreement contains no covenant by the mortgagor for payment of the proposed loan, or for replacing the stock sold, and is not meant to be under seal, the mortgagees being content to rely
FOR A MORTGAGE
A SUM OF STOCK.
2. Recites that,
to them for a loan on mortgage;
E. F., of, &c. [mortgagor], of the second part, and G. H., PRECEDENT XX. of, &c. [a cestui que trust of the stock], of the third part: WHEREAS the said A. B. and C. D., as the surviving TO TRUSTEES OF trustees of the will of the late X. Y., are possessed of a considerable sum of Bank Three Pounds per cent. Consolidated Annuities standing in their names, and trustees of stock; held by them in trust to pay the income thereof to the said G. H. during his life, and they are empowered, with the consent in writing of the said G. H., to vary the investment of the said Consolidated Annuities, and to lend their trust funds upon mortgage of real estate; AND 3.-application WHEREAS the said E. F. lately applied to the said A. B. and C. D. for a loan of £5000, at interest at 5 per cent. per annum, to be secured by a mortgage in fee of his estate at in the county of called the estate, and the said A. B. and C. D., with the consent of the said G. H., agreed that, upon the said E. F. deducing and showing them a good title to the said estate, they would raise the sum of £5000 by a sale of part of the said Bank Annuities and lend the same to the said E. F. on the said security; AND WHEREAS the several deeds and muniments of title specified in the schedule hereunder written or hereunto annexed relate the mortgage not yet completed. to the said estate, and have been deposited with the said A. B. and C. D. by the said E. F., for the purpose of enabling them to investigate the title to the
on the security afforded them by retaining the Exchequer Bills under their own control, and by the deposit of the title deeds, though they cannot obtain a decree for the specific performance of the agreement. See supra, p. 81, n. The agreement in the text may however be converted into a covenant, by making it under the seals of the parties, and stipulating in the last clause but one, that the mortgagor, his heirs, executors, or administrators, shall replace the stock, and in the last clause, that the cestui que trust, his heirs, executors, or administrators shall indemnify the trustees; since an agreement entered into by deed between two or more persons for the performance of certain acts, or the forbearance to do certain acts, is an express covenant: 1 Selw. N. P. 445, 453; and the heirs of the covenantor, being named in the deed, will be bound by it: Id. 488.
deeds have been
TO TRUSTEES OF A SUM OF STOCK.
PRECEDENT XX. said estate, and to prepare the deeds and assurances FOR A MORTGAGE proper for completing the said proposed mortgage, and the said deeds and muniments are now in the possession of the said A. B. and C. D., but the said loan has not yet been made, and further time is still required to investigate and perfect the title to the said estate, and to prepare and complete the proper deeds and assurances; AND WHEREAS the said A. B. and C. D. are advised that it will be consistent with a due regard to their trust to realise the present market price of Bank Three Pounds per cent. Consolidated Annuities by the immediate sale of a sufficient part of the said stock in their names, to raise the said sum of £5000, and to invest that sum when raised in the purchase of Exchequer Bills until the same
advised that they
may realise the
ment to sell stock
6. Witness agree shall be actually required for the said loan: NOW THESE PRESENTS WITNESS, that it is hereby agreed between the parties hereto, and the said G. H. doth hereby consent as follows:
and invest proceeds in Exchequer Bills.
Bills to be lodged
ing the com
pletion of the mortgage.
1. The said A. B. and C. D. shall forthwith sell a sufficient part of the Bank Three Pounds per cent. Consolidated Annuities standing in their names as aforesaid to raise the net sum of £5000, and shall immediately after the said sale invest the said sum of £5000, or as much thereof as possible, in the purchase of Exchequer Bills.
2. The said Exchequer Bills when purchased, and any at a bank pend- Exchequer Bills which may be substituted for them in the ordinary course of dealings with such securities, and all interest which may be received thereon respectively, and any balance of the said sum of £5000 remaining after the said purchase, shall be lodged at the Bank, at the order and disposal of the said A. B. and C. D., or the survivor of them, or other the trustees or trustee for the time being of the said will of the said X. Y. (hereinafter called the said trustees or trustee) but wholly at the risk of the said E. F.
8. On title being approved of, mortgagor to exe
3. When and as soon as the title of the said E. F. to the said estate shall have been investigated and
cute proper mort- approved of on behalf of the said trustees or trustee,
FOR A MORTGAGE
TO TRUSTEES OF
A SUM OF STOCK.
the said E. F. and all other necessary parties at his cost PRECEDENT XX. shall, upon the request of the said trustees or trustee convey and assure the said estate to the said trustees or trustee in fee simple in possession free from incumbrances, by way of mortgage, for securing the payment to them or him of the sum of £5000, with interest thereon at the rate of 5 per cent. per annum from the day of the sale of the said Bank Annuities; and the said mortgage. shall contain such a power of sale and such covenants and clauses as the counsel of the said trustees or trustee shall reasonably require.
4. On the completion of the said mortgage and the execution of such conveyances and assurances as aforesaid, the said trustees or trustee shall deliver the said Exchequer Bills and pay the said interest and cash. balance (if any) to the said E. F., his executors, administrators, or assigns, and the said E. F., his executors, administrators, or assigns, shall accept the same in satisfaction of the said proposed loan of £5000, and shall forthwith pay all the costs and expenses incurred by the said A. B. and C. D., or either of them, or other the trustees or trustee aforesaid, in or about the negotiation for and completion of the said mortgage or incidental thereto.
9. and Exchequer Bills to be
delivered to him.
10. Power for
trustees to aban
don the mort
gage unless completed by a cer
5. If from any cause whatever the said mortgage shall not be completed and the said deeds and assurances shall not be executed on or before the next, the said trustees or trustee may, on or at any time tain day. after that day, and notwithstanding any subsequent negotiation, by a notice in writing sent to the said E. F. or his solicitor, rescind and abandon the said proposed mortgage, and thereupon shall sell the said Exchequer Bills, and, out of the money produced thereby and any interest which may have been paid thereon, and any such cash balance as aforesaid, shall in the first place pay all the costs and expenses incurred in or about the trustees' costs, negotiation for the said mortgage, and incidental thereto, and in or about the sale of the said Exchequer Bills and the repurchase of Bank Annuities as hereinafter men
11. Application Bills, if mortgage be aban
In payment of