No. XXXVI. Conveyance by a Vendor and Mortgagee in Fee Variations where a Part only of the mortgaged Premises Where the Mortgagee is himself the Purchaser. Where the Conveyance is from the Heir at Law, &c. Where such Heir is an Infant. Where the Conveyance is taken by the Purchaser to THIS INDENTURE of parts, made the day of in the year of the reign, PURCHASES. Vendor and Mortgagee in Fee. Previous reconveyance to the mortgagor be re may (1) As it is necessary, in order to make the covenants for the title run with the land, that there should be a privity of estate between the vendor and purchaser, Webb v. Russell, 3 Durnf. and East. 393, 678. 1 Hen. Blac. 562, Roach v. Woodham, quired. 6 East. Rep. 289, a mortgagor is sometimes required to procure a reconveyance of the fee to himself (by deed dated the day preceding) before he conveys to a purchaser, because as there is no legal privity between the purchaser and the vendor, during the subsistence of the mortgagee's estate, it might be contended that the covenants for the title were covenants in gross, and would not entitle the purchaser to avail himself of them, otherwise than by making use of the name of the vendor; but as, on the other hand, judgments and other incumbrances of the vendor, or his wife's title to dower, might attach on the estate, by suffering it to vest in him previously to the conveyance to the purchaser, it is more general to take the conveyance PURCHASES. &c. and in the Vendor andl Mortgagee in Fee. Recital of a TWEEN (the mortgagee) of, &c. first part, (the vendor) (1) of, &c. BE of the of the said mortgage in fee. of the third part (2). WHEREAS (3) the (vendor) being seised in his demesne, as of fee, of the messuages, lands, and hereditaments hereinafter described, by indentures of lease and release, bearing date respectively the Wife of vendor. Wife of purchaser. Heir, &c. of mortgagee. Mortgagee an infant. Recitals. which was in the year and days of the release immediately from the mortgagee. The variations subjoined may perhaps however be considered as obviating the objection. (1) Although the vendor be married, yet as a wife is not entitled to dower out of an equity of redemption, she need not be a party unless the mortgage was made subsequent to his marriage, and no fine was levied on the execution of the mortgage, or the declaration of the uses subject to the mortgage was to the husband in fee, and the conveyance to the purchaser be before forfeiture, in which case a fine will be necessary, see a full and instructive note on this subject, Co. Lit. 208, n. (1). (2) If the purchaser be married, and his wife dowable, make a trustee party, as, "Being a trustee named and appointed by and on behalf of the said (purchaser) for the purposes hereinafter mentioned, of the part,” as ante, No. XXXI. p. 2, n. (1). If the conveyance be from the heir at law, or other representative of the mortgagee, make, "(The heir at law (or devisee) of the mortgagee) of the first part, (his executors or administrators) of the second part, (the vendor) of the third part, and (the purchaser) of the fourth part." If the heir at law of the mortgagee be an infant, see post, rider (B) p. 143. (3) As to recitals, see Vol. I. p. 162, in notes; also 4 Elem. Conv. 2d edit. p. 107; and for the form of recitals of different species of deeds, &c. see INDEX voc. RecitaLS. being of Vendor and Mortgagee in Fee. parts, and made or expressed to be PURCHASES. made between, &c. the said (vendor) in consideration of the sum of £ then advanced to him by the said (mortgagee) by way of loan, and at interest after the rate therein mentioned, conveyed and assured the said messuages, lands, and hereditaments, unto and to the use of the said (mortgagee), his heirs and assigns, subject nevertheless to a proviso in the said indenture of release contained, that if the said (vendor), his heirs, executors, or administrators, [or any person or persons on his or their behalf], should pay, [or cause to be paid], unto the said (mortgagee), his executors, administrators, or assigns, the said sum of £ with interest for the same after the rate, at the time, and in the manner therein appointed for payment thereof, he the said (mortgagee), his heirs or assigns, would, at the expense of the said (vendor), his heirs, executors, administrators, or assigns, convey and assure all or any part of the said mortgaged premises, for all his and their estate and interest therein under or by virtue of the said indenture, unto and to the use of 'or for the said (vendor), his heirs or assigns, or unto such other person or persons, and for such estates and interests as he or they should in writing under his or their hand or respective hands, direct or appoint in that behalf (1). AND WHEREAS de (1) If the mortgage has been previously paid off, recite, "AND WHEREAS, the said sum of £ and all Mortgage previously paid off. Vendor and Fee. PURCHASES. fault was made in payment of the said sum of £ at the time in the said in part recited Mortgagee in indenture mentioned for payment of the same, whereby the estate and interest of the said (mortDefault made. gagee) in the said premises, became absolute at law, and redeemable only in equity (1). AND WHEREAS interest due in respect thereof, have been fully paid and (1) If the conveyance be by the representatives of the mortgagee, recite the will or intestacy and death of the mortgagee, as, day of "And whereas the said (mortgagee) departed this life on or about the intestate, leaving the said (heir), his eldest son and heir at law, and letters of administration to his estate and effects were, soon after his decease, granted to the said (administrator) by the Prerogative Court of And if such heir be an infant, see post, rider (B), p. 143. Or, 66 Having first duly made and published his last will and testament in writing, bearing date on or about the day of Or, "Whereby he gave and devised all and every the lands and hereditaments whereof he was seised or held by way of mortgage with their appurtenances, unto A. B. of, &c. and his heirs, upon trust and to the intent, and he did thereby direct that he the said A. B. or his heirs should, on payment unto the executors thereafter in his said will there is now owing to the said (mortgagee) upon PURCHASES. the said in part recited security, the said principal Vendor and Fee. together with the sum of Mortgagee in for interest up to this day, making to gether the sum of £ sum of £ (or the said principal purchase. and no more, all interest for the same having been paid up to the date hereof). AND WHEREAS the said (purchaser) hath contracted Contract for with (1) the said (vendor) for the absolute purchase of the said messuages, lands, and hereditaments, [or such part of the said messuages, &c. as are hereinafter described], free from all incumbrances (except as hereinafter is mentioned), for the sum of £ out of which it has been agreed that the said sum of £ shall be paid to the said (mortgagee) in discharge of the said mortgage, who has agreed to accept thereof, and execute such conveyance of his estate and interest in the said hereditaments as hereinafter is expressed. Now THIS INDEN- WITNESS, TURE WITNESSETH (2), that in pursuance of the deration of the said agreement, and for and in consideration of sum due on the in consi mortgage. named, of all monies due thereon, convey, release and assure the said hereditaments unto such person or persons, who for the time being should or might be entitled to redeem the same." (1) If the premises were sold by auction, see ante, No. XXXI. Auction. p. 4, n. (1). Order of court. If by order of court, see Vol. I. No. XVI. p. 163, n. (4). (2) of the WITNESSING part of a deed, see notes, Vol. I. No. WITNESS. XV. p. 123, et seq. also 4 Elem. Conv. 2d edit. p. 98, et seq. |