(1) See also notes to Vol. I. No. I. and the subsequent Notes. numbers there, which with a little variation may be converted into mortgage agreements relative to like species of property. As an agreement for a mortgage is holden to be an equitable Nature of lien upon the land, and consequently to give priority to other mortgage. MORTGAGES Our Lord Deposit of Title gagor) of, &c. Deeds. BETWEEN (the intended mort[for himself, his heirs, exe Deposit of title deeds. creditors, Burn v. Burn, 3 Ves. jun. 582, (even the crown if the debt be by simple contract, Casberd v. Attorney General, 6 Pri. 41), and will cover subsequent advances made upon such security, ex parte Langston, 17 Ves. 227; it is in many cases expedient to take this preliminary security, particularly where the title of the mortgagor is such as not to admit of the deeds being deposited with the mortgagee. And a mere deposit of the title deeds of the estate without writing has been considered as evidence of an agreement to execute a mortgage, and to give a like priority, Russell v. Russell, 1 Bro. Ch. Ca. 269; ex parte Bulteel, 1 Cox, 243; Lucas v. Commerford, 3 Bro. Ch. Ca. 166, 1 Ves. jun. 235; Jones v. Gibbons, 9 Ves. jun. 411; Monkhouse v. Corp. Bedford, ib. 380; and to cover further advances, Hiern v. Mill. 13 ib. 114; which has therefore occasioned this mode to be frequently adopted, see ex parte Coming, 9 Ves. jun. 115; Jones, ib. 411; ex parte Haigh, 11 ib. 403; ex parte Mountford, 14 ib. 606. But as the case of Russell v. Russell, upon which the subsequent cases are founded, has been disapproved of by the courts, see ex parte Wetherall, 11 Ves. jun. 401; ex parte Haigh, ubi sup, and ex parte Finden, cited in a note there, ex parte Whitbread, 19 ib. 209; ex parte Langston, 17 Ves. jun. 229; 1 Rose Rep. 26; ex parte Combes, 17 Ves. jun. 369; ex parte Hooper, 1 Mer. 7; Hawkins v. Ramsbottom, 1 Pri. 138; Edge v. Worthington, 1 Cox, 211; it is always prudent that a deposit of title deeds should be accompanied by some writing showing the intent for which they were deposited, Norris v. Wilkins, 6 Pri. 495; and see Norris v. Wilkinson, 12 Ves. jun. 192, where the deeds having been delivered not as an immediate security but only for the purpose of having a mortgage prepared, the lien was not allowed; and it should seem that in order to constitute an equitable mortgage by deposit, the whole of the deeds requisite to support the title must be delivered over, ex parte Pearse v. Prothero, 1 Buck. 525. But as such agreement alone can give but an equitable interest to the mortgagee, without transferring any legal right, or precluding other creditors from their remedy at law, Finch v. Earl of Winchelsea, 1 P. Wms. cutors, and administrators,] of the one part, and MORTGAGES (the intended mortgagee) of, &c. [for himself, Deposit of Title his heirs, executors, administrators, and assigns,] Deeds. of the other part as follow, (that is to say), WHEREAS the said (intended mortgagee) hath this Recital of loan. day lent unto the said (intended mortgagor) the sum of £ (1), and for securing the payment thereof with interest after the rate hereinafter mentioned, the said (mortgagor) hath agreed to deposit in the hands of the said (mortgagee) the several title deeds mentioned in the schedule hereunder written, and to execute such mortgage to him of the hereditaments therein comprised, as hereinafter is expressed. Now THESE PRESENTS WITNESS, that WITNESS, that in pursuance of the said agreement, dule are de 277; Doe ex. dem. Martin v. Roe, 5 Espin. Rep. 105; it is advisable that an actual conveyance should be executed as early as circumstances will permit. deeds in sche posited with mortgagee. And a deposit of copies of court roll are an equitable lien on Copy holds. copyholds, Warner ex parte, 19 Ves. 202. And where a lease is deposited as a security for a debt, the Leaseholds. creditor has a lien as against all persons claiming under the debtor with notice of the deposit; but not as against an assignment of the lease, although subsequent to the deposit, Mountford E. Scott, 3 Madd. 34; and the depositary being by reason of the deposit entitled to a legal conveyance, he is considered in equity as having it, and therefore if the deposit be a lease, he will be decreed to pay and perform the rents and covenants; Lucas v. Cummerford, 1 Ves. jun. 235; 3 Brow. C. C. 166. (1) If the sum now advanced is only part of the sum agreed Further sum. to be lent, add, L "And hath agreed to advance to him the further sum of on or before the ensuing, making together the sum of £ , on having the same with interest secured as hereinafter mentioned." MORTGAGES and in consideration of the said sum of £ Deposit of Title repayment of the sum lent. so now advanced by the said (mortgagee) to the said (mortgagor) as aforesaid, he the said (mortgagor) at the time of the signing and sealing of these presents, HATH delivered unto and deposited with the said (mortgagee) all and every the deeds, writings, and evidences mentioned in the schedule To remain until hereunder written, to and for the intent and purpose that the same shall be and remain a pledge and security for the repayment to the said (mortgagee) his executors, administrators, or assigns, of the said sum of £ (1), with interest for the same after the rate of five per cent. per annum, clear of all deductions whatsoever, on or before the day of next ensuing the date hereof. [(*) AND the said (mortgagor) doth hereby declare, grant, and agree with and to the said (mortgagee) his [heirs] (2), executors, administrators, and assigns, that until full payment shall be made of the said sum of £ Further sum. Brevity. Leaseholds. Further sum. (1) If a further sum is to be advanced, add, (3), with "And also such further sum or sums as may hereafter be advanced by the said (mortgagee) to the said (mortgagor)." (*) Where it is desired that the agreement should be as short as possible, and the deeds are deposited, the remainder of the precedent may be omitted. (2) If the premises intended to be mortgaged are leasehold, omit the word "heirs" here and throughout, where within brackets. (3) If a further sum is to be lent, add, 66 Together with all and every other sum and sums which shall or may be hereafter advanced to the said (mortgagor) by the said (mortgagee).” Deposit of Title execute a interest after the rate aforesaid, in the mean time, MORTGAGES he the said (mortgagee) his [heirs,] executors, administrators, and assigns, shall and lawfully may have and retain all and singular the said deeds, evidences and writings, and shall not be compelled or required to deliver up or part with the same or any of them, unto any person or persons whomsoever, for or upon any pretext or cause whatsoever.] AND further, that he the said (mort- Agreement to gagor) his [heirs,] executors, or administrators, mortgage. shall and will when thereunto required by the said (mortgagee) his [heirs,] executors, administrators, or assigns (1), at the costs and charges of him the said (mortgagor) his executors, or administrators, well and effectually convey and assure, by such good and satisfactory conveyance and assurances in the law, as the said (mortgagee) his [heirs,] executors, administrators, or assigns, or his counsel shall reasonably advise and require, ALL and singular (2), the messuages, lands, and he (1) If a further sum is to be advanced, add, "Or upon receiving from the said (mortgagce) his executors or administrators, the said further sum of £ Further sum. (2) If a part only of the premises comprised in the deeds are Mortgage of intended to be mortgaged, insert here a particular description of part only. those which are designed to be made the subject of such security, instead of the general reference made in the text, or exclude such as are not intended to be comprised in the mortgage, by, "Save only and except such parts or parcels of the lands and hereditaments comprised in the indenture therein mentioned, bearing date the day of as are in the said indenture described to be situated," &c. (or the like). |