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CHAPTER XXV.

MORTGAGES.

MORTGAGE IN FEE.

This indenture, made, &c., between [the mortgagor] of the one part, and [the mortgagee) of the other part. [Recite the instrument showing the mortgagor's title, and the contract for the loan.] Now, this indenture witnesseth, that, in pursuance of the said recited agreement, and in consideration of the sum of L. of lawful money of Great Britain to the said at or immediately before the execution of these presents by the said in hand well and truly paid, the receipt of which said sum the said

doth hereby acknowledge, and of and from the same, and every part thereof, doth acquit, release, and discharge the said

his heirs, executors, administrators, and assigns, for ever, by these presents, he, the said

hath granted, bargained, sold, released, and confirmed, and by these presents doth, &c., unto the said

in his actual possession, &c.,) and his heirs, all, &c., and the reversion, &c., and all the estate, &c. : To have and to hold the said

, and all and singular other the premises hereby granted and released, or intended so to be, with their appurtenances, unto the said

his heirs and assigns, to the only proper use and behoof of the said , his heirs and assigns, for ever ; subject, nevertheless, to the proviso or agreement for redemption and reconveyance hereinafter contained ; (that is to say,) [Add proviso for redemption, p. 72; covenants for payment of the money ; for insurance, (if desired ;) and for title, p. 97; and proviso for quiet enjoyment till default, see p. 72. A power of sale, if desired, should be inserted after the covenant for payment, p. 55.] In witness, &c.

MORTGAGE OF COPYHOLDS.

This indenture, made, &c. [Recite the mortgagor's title, and agreement for loan.] Now, this indenture witnesseth, that, in consideration, &c., he, the said [mortgagor,] doth hereby, for himself, his heirs, executors, and administrators, covenant, promise, and agree, with and to the said [mortgagee,] his heirs, executors, administrators, and assigns, that he, the said (mortgagor,] and his heirs, and all and every other proper and necessary parties, shall and will, at the costs and charges of the said [mortgagor,] his heirs, executors, or administrators, at the next general or other court that shall or may be holden for the said manor of , well and effectually surrender, or cause and procure to be well and effectually surrendered, either in person or by attorney,' into the hands of the lord or lords, lady or ladies, for the time being of the said manor, or other. wise convey and assure, according to the custom thereof, [All, &c., as in the case of an absolute conveyance of copyholds ; see p. 386.] To the use, intent, and purpose that the said [mortgagee,] his heirs or assigns, shall and may be duly admitted tenant of the same messuages, lands, and premises, hereby covenanted to be surrendered, or intended so to be, with their appurtenances : To hold the same to him, the said [mortgagee,] his heirs and assigns, for ever, at the will of the lord, according to the custom of the said manor, subject only to the rents, suits, and services therefore due and of right accustomed, and subject also to the proviso or agreement for re

• If these words are not inserted, the mortgagee may ob ject to a surrender by attorney, ante, p. 205.

demption next hereinafter contained, (or) [subject to a proviso or condition to be contained in the said surrender for making void the same on payment by the said [mortgagor,] his heirs, executors, administrators, or assigns, of the said sum of L. with interest for the same after the rate of L. for every L.100 per annum, at the time therein mentioned for payment thereof:] And it is hereby agreed and declared between and by the parties hereto, that he, the said [mortgagor,] his heirs and assigns, shall and will stand and be seised or possessed of the same messuages, lands, and premises in the meantime, and until the same shall be well and effectually surrendered, and the said [mortgagee,] his heirs or assigns, admitted thereto, in trust for the said [mortgagee,] his heirs, executors, administrators, or assigns, for securing to him and them the repayment of the said sum of L.

and interest, according to the true intent and meaning of these presents. [Add proviso forredemption, power of sale, covenants for payment and for title, and proviso for enjoyment till default, pp. 72, 97, 55.] In witness, &c.

A CONCISE MORTGAGE WITH TRUSTS FOR SALE.

This indenture, made, &c., between A.B., [the mortgagor,] of the one part, and C.D., [the mortgagee,] of the other part. [Insert such recitals as are necessary to show the mortgagor's title, and recite the contract for loan, then convey the property to the morfgagee, as in other conveyances. Habendum, ] upon trust, nevertheless, that if the said A. B., his heirs, executors, administrators, or assigns, shall pay, or cause to be paid, unto the said C. D., his executors, administrators, or assigns, the sum of L. of lawful British money, with interest for the same after the rate, &c., on, &c., without any deduction or abatement whatsoever, then, and in such case, he, the said C. D., his or assigns, shall and will, at the

' This form is applicable to copyholds of inheritance, but may be easily adapted to all other copyholds.

Trusts for sale.

request, costs, and charges of the said A. B., his heirs, executors, administrators, or assigns, reconvey and re-assure the said hereditaments and premises unto him or them, or as he or they shall direct or appoint, free from all incumbrances to be created by the said C. D., his executors, administrators, or assigns, in the meantime; but if default shall be made in payment of the said sum of L. and interest, or any part thereof respectively, at the time and in manner aforesaid, then upon trust that he, the said C. D., his heirs, executors, administrators, or assigns, shall and do, at any time thereafter, as he or they, in his or their discretion, shall think fit, without any further or other authority of the said A. B., his heirs, executors, administrators, or assigns, absolutely sell and dispose of the said messuages and other he. reditaments and premises hereby or intended so to be, or any part thereof, either together or in parcels, and either by public auction or private contract, to any person or persons whomsoever, under and subject to such conditions of sale, or other conditions, stipulations, or agreements, as he or they shall, in his or their uncontrolled discretion, think proper ; with full power to buy in the said premises, or any part thereof, at any such auction, and afterwards to sell the same in any of the ways aforesaid; and shall and do, on such sale or sales, make and execute all such deeds, assignments, conveyances, and assurances, as shall be deemed requisite and necessary to complete the same; and also give and sign good and sufficient receipts and discharges for the moneys to be received by such sale or sales to the purchaser or purchasers of the said premises, or any part thereof, who, paying such money, and taking such receipt or receipts for the same, shall not afterwards be obliged to see to the application, or be answerable or accountable for the misapplication or non-application of the same, or any part thereof; and upon further trust that the said C.D., his heirs, executors, administrators, or assigns, shall and do stand possessed of and interested in the moneys which shall arise by such sale or sales, In trust, in the

first place, to retain and pay himself and themselves thereout all such costs, charges, and expenses, as he or they shall or may bear, sustain, or be put unto, in or about the making and completing such sale or sales, or otherwise, in or about the execution of the trusts hereby in him or them reposed; and, in the next place, retain and satisfy to him and them the said sum of L. with all interest then due for the same, and all costs and expenses occasioned by the non-payment thereof; and shall and do pay the surplus (if any) of such moneys unto the said A. B., his heirs, executors, administrators, or assigns. [ Add covenants for payment, and for title, or, if brevity is an object, only the covenants for quiet enjoyment and for further assurance, p. 97.] In witness, &c.

TRANSFER? OF A MORTGAGE WHERE THE MORTGAGOR

CONCURS, AND A FURTHER SUM IS ADVANCED.

This indenture, made, &c., between [the mortgagee] of the first part, [the mortgagor] of the second part, and [the assignee] of the third part. [Recite the mortgage.] And whereas the said principal sum of L. still remains due and owing upon the before in part recited securities, together with L. for arrears of interest thereon, [or] but all interest for the same hath been duly paid up to the day of

? It is recommended in all cases of assignment of mort- When the gages, to make the mortgagor (if possible) a party ; for, mortgagor although it is not absolutely necessary upon a simple trans

should be a fer, where no further sum is advanced, yet it furnishes 15

party to an evidence of the mortgage-money remaining due. No further sum advanced by the assignee will carry interest, nor can any part of the interest be made principal, without the mortgagor becoming a party. (4 Ves. 118, 126, 128; 1 Vern. 168.)

In the mere transfer of a mortgage, where no further sum is advanced, the principal object is the assignment of the debt, which is a chose in action, and must be sued for in the assignor's name; therefore a power of attorney for that purpose must be inserted in such transfer. (See Matthews v. Walwyn, 1 Ves. 128; and ante, p. 286.)

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