Freeholds with Power of Sale. (Full Form.) any conveyance or assurance to any purchaser MORTGAGES or purchasers, or other person or persons to whom the said hereditaments, or any part thereof, shall be sold or disposed of, and intended to be conveyed or assured, shall not in any wise be deemed essential to give effect to the same, or to better the title of such purchaser or purchasers, or other person or persons to or concerning the said hereditaments or any part thereof, but shall be construed to be for the satisfaction only of the person or persons requiring the same. PROVIDED ALSO, and it is Mortgagor to hereby further declared aud agreed by and between the said (mortgagor) and (mortgagee) that until default shall be made in payment of the said principal sum of £ or some part thereof, or of the interest thereof, at the times or in the manner hereinbefore appointed for payment of the same respectively, he the said (mortgagor) his heirs and assigns, shall or lawfully may peaceably and quietly have, hold, occupy, possess, and enjoy all and singular the messuages, lands, tenements, and hereditaments, by these presents granted and released, or otherwise assured, or intended so to be, and receive and take the rents, issues, and profits thereof, (save only and except timber and timber-like trees, in or upon the said lands and premises, or any part thereof,) to and for his and their own proper use and benefit, without any molestation, hinderance, interruption, or disturbance whatsoever, from or by the said (mortgagee) his heirs, executors, administrators, or assigns, or any person or persons whomsoever, lawfully or enjoy till default. (See ante, p. 57, n. (1).) MORTGAGES rightfully claiming or possessing any estate, right, title, or interest, either at law or in equity, from, through, under, or in trust for him, them, or any or either of them (1). IN WITNESS, &c. Freeholds with Power of Sale. (Full Form.) Additions. Fire policy. interest. Leases. Timber. Money to re main. Receiver, Outstanding term. Outstanding fee. Title deeds. Arrears of rent. Execution, &c. (1) See additional provisions, &c. to be inserted when occasion requires it, ante, p. 87, et seq. viz. Assignment of fire policy, ante, p. 87. Covenant by mortgagor to repair and insure, ante, p. 98. p. 96. Power for mortgagor to grant leases, ante, p. 101. Mortgagor to be at liberty or forbidden, &c. to fell timber, ante, p. 104. Money to remain for a certain time on the security, ante, p. 106. Appointment of receiver of rents, ante, p. 107. Assignment of outstanding term, ante, p. 111. Covenant to produce deeds not delivered, ante, p. 132. Assignment of arrears of rent, post, Vol. VI. p. 413, n. (21). * As to the execution, and other matters relative to the carrying into effect a deed of the above kind, see INTRODUCTION to the volume. MORTGAGES Freeholds with Power of Sale. (A.) Variation where the Declaration of Trust of Money to arise by Sale is made by a separate Instrument. See ante, p. 432, n. (1). (Full Form.) Make the deed between the mortgagor of the one part, and Trusts of money by separate the mortgagee of the other part (1): deed. "WHEREAS by indentures of lease and release, the lease bearing date the day next before the day of the date of the release, and the release bearing or intended to bear even date with these presents, and made or expressed to be made between the same persons as are parties hereto, certain messuages, lands, tenements, and hereditaments therein particularly described and mentioned to be situated at in the said county of were conveyed and assured unto and to the use of the said (mortgagee) his heirs and assigns, SUBJECT nevertheless to redemption on payment of the sum of £ and interest, at the time and in the manner therein mentioned, and in default thereof, then with full power and authority for him the said (mortgagee) his heirs or assigns, to make sale or otherwise dispose of the same, in the manner therein expressed, and to pay and apply the money to arise and be received from or by such sale, and the rents and growing proceeds thereof in the mean time, upon such trusts, and to and for such ends, intents, and purposes as were or should be declared concerning the same, in this present indenture therein referred to, as a certain indenture then already prepared and (1) If the conveyance be to a trustee for sale, instead of the Trustee. mortgagee himself, and see post, No. XXII. make such trustee 66 a party as a trustee named and appointed by and on the part of the said mortgagor and mortgagee respectively for the purposes hereinafter expressed," of the third part. Freeholds with Power of Sale. (Full Form.) MORTGAGES engrossed, bearing or intended to bear even date therewith, and made, or expressed or intended to be made between the Same persons as were parties thereto. Now THIS INDENTURE WITNESSETH, that in pursuance of the said indenture, and the trusts and agreements therein contained, and for carrying the same into effect, it is hereby declared and agreed by and between the said several parties hereto, to be the true intent and meaning of the said indenture and of these presents, that he the said (mortgagee) his heirs, executors, administrators, and assigns, shall and will stand and be possessed of, interested in, and entitled to all and singular the money to arise by any sale or sales or other disposition which shall or may be made of the said lands and hereditaments, or of any part or parcel thereof, and the rents, issues, and proceeds thereof, in the meantime upon the trusts, and for the ends, intents, and purposes hereinafter declared or expressed concerning the same, that is to say," &c. (1). Trusts of money (1) See and proceed as ante, p. 432, et seq. (B) Observations on the Effect of a Power for Mortgagee Power of sale to sell the mortgaged Premises on Default made in Pay- by mortgagee, ment of the Mortgage Money. The following note, inserted in the former editions of this Trust or power work, may be introduced here as a preliminary to the observations referred to above: "In treating of mortgage interests in another place, (vid. 3 Elem. Conv. 348), it was noticed that the inconveniences attendant upon foreclosing the mortgagor, on his failing to repay the money borrowed within a reasonable time after the day appointed for payment, had induced an attempt, by various contrivances, to give the mortgagee an easier and more expeditious mode of recovering payment; but that the equitable maxim, once a mortgage, and always a mortgage,' had been conceived to render all those contrivances either abortive or of suspicious efficacy, on account of the proviso for redemption, which, by admitting a right to exist in the mortgagor to redeem the estate on repayment of the money on a day appointed, had led our courts of equity to consider a forfeiture incurred by failure, in the nature of a penalty, and therefore to relieve against it at an indefinite length of time on repayment of principal, interest, and costs. But as this equitable interference arises from the circumstance of the transaction having been originally a mortgage, or pledge only for the repayment of a debt of far inferior amount generally to the real value of the estate, and not in the nature of a trust to sell for payment of debts,' &c. see Croft v. Powell, Comyns, 603; it was suggested, that if the transaction could be divested of or prevented from acquiring the mortgage character, by assuming in the first instance the form and substance of a conveyance of the premises upon trust to be sold for payment of the principal and interest, if not paid on the day appointed, the inconveniences and objection alluded to would be avoided:" with a view to which the form of an assurance was then submitted to the practitioner. mortgage-deed. |