« PreviousContinue »
signee,] his executors, administrators, and assigns, for better and more effectually securing to him and them the said principal sum of L. , and inte. rest and other moneys hereby secured, or intended so to be; and for that purpose to assign and dispose of the same term and premises, from time to time, as he or they shall direct or appoint, and subject thereto, In trust for the said [mortgagor,] his heirs, appointees, and assigns, and to wait upon and attend the reversion, freehold, and inheritance of the same premises. [Add a covenant by mortgagee that he has done no act to incumber, 89.] In witness, &c.
MORTGAGE OF LEASEHOLDS FOR YEARS.
This indenture, made, &c., between the mort. Parties. gagor,] of, &c., of the one part, and [the mortgagee,] of, &c., of the other part. [Recite the original lease, (see p. 33,) and recite the mesne assignments, (or say, “ by divers,” &c., as in p. 32, showing the original lease and the last assignment ;) and recite the contract for the loan, see p. 26.] Now, this in- Testatum denture witnesseth, that, in pursuance of the said agreement, and in consideration, &c., he, the said [mortgagor,] hath granted, bargained, sold, assigned, transferred, and set over, and by these presents doth, &c., unto the said [mortgagee, his executors, administrators, and assigns, all, &c., comprised in and demised by the said recited indenture of, &c., and assigned to the said [mortgagor, J as aforesaid, with their and every of their appurtenances, and all the estate, right, title, interest, terin, and terms of years yet to come and unexpired, property, claim, and demand-whatsoever of him, the said [mortgagor, 7 of, in, or to the same, or any part or parcel thereof, both at law and in equity. To have and to hold the said, Habendum.. &c., hereby assigned, or intended so to be, with their appurtenances, unto the said [mortgagee,] his executors, administrators, and assigns, for and during all the rest, residue, and remainder yet to come and un
expired of the said term of, &c., and all other the estate, term, and interest of the said [mortgagor,] of and in the same ; subject nevertheless to the payment of the rent thereby reserved, and the performance of the covenants and agreements therein contained, (which, from the 25th day of March last past, are or ought to be paid, performed, fulfilled, and kept, for
and in respect of the said premises ;) and subject Proviso form also to the proviso or condition for redemption redemption. hereinafter contained ; (that is to say,) provided, &c.
[Add a proviso for redemption, p. 72, and covenants by the mortgagor for payment of the mortgage-money and interest, p. 97, that the lease is valid, as in p. 94, (commencing with the words, “That the said hereinbefore recited lease," &c., without the preliminary qualification, which is always omitted in mortgages,) and other covenants for title, p.95.) And further, that he, the said [mortgagor,] his heirs, executors, or administrators, shall and will, from time to time, so long as any principal, interest, or other moneys shall remain due on the security intended to be hereby made, pay, perform, and keep the rents, covenants, and agreements, in and by the said in part recited indenture of lease reserved and contained, on the lessee's or assignee's part to become due and pay. able, and to be performed and kept, for or in respect of the said leasehold premises, or any part thereof. [If required, add covenant for keeping the premises insured, see form, p. 98, which, if the insurance has not been actually effected, will require to be varied in the commencement, for which, see p. 108; and add proviso for mortgagor to enjoy till default.] In witness, &c.
This indenture, made, &c., between [the mort
When by in- The further charge is frequently made by indorsement; dorsement for which purpose this precedent may be easily altered.
gagor] of the one part, and [the mortgagee] of the other part. [Recite the mortgage, that the mortgage- Recital. money is still due, and agreement for further loan:] Now, this indenture witnesseth, that, in considera- Testatum. tion, &c., he, the said [mortgagor,] for himself, his heirs, executors, and administrators, doth covenant, grant, declare, and agree with and to the said [mortgagee,] his executors, administrators, and assigns, in manner following ; (that is to say,) that all and sin- Charge. gular the said messuage, &c., described in the said recited indenture of mortgage, with their appurtenances, shall stand and be chargeable with, and continue and be a security unto him, the said [mortgagee,] his executors, administrators, and assigns, not only for the payment of the said sum of L. and interest respectively secured by the said recited indenture, as aforesaid, but also for the payment of the said sum of L.
now (or since] advanced by him as aforesaid, with interest for the same after the rate of L. per cent. per annum, until paid. And that the said messuage, &c., shall not be redeemed, or redeemable, either at law or in equity, until as well the said sum of L. and interest, as also the said sum of L.
and interest, together with all costs, charges, damages, and expenses, occasioned by or in relation thereto, shall be fully paid and satisfied unto the said [mortgagee,] his executors, administrators, and assigns, according to the true intent and meaning of these presents. [Add covenants from mortgagor for payment of the Covenants. further sum and interest, p. 97," and short covenants
5 On a day named, or “upon lawful demand made to him Covenant. or them by the said (mortgagee,) his executors, administrators, or assigns, for that purpose.”
If there be a power of sale in the mortgage, add, “ And when a power further, that the said premises, and every of them, shall be, of sale. and they are hereby made subject and liable to the same, or the like power of sale, and other powers and remedies, for payment of the said sum of L. , as the same premises are by the said recited indenture of, &c., subject or liable to,
that he hath not incumbered ;i and for further assurance, see pp. 89 and 100.] In witness, &c."
MORTGAGE BY A TENANT IN TAIL, WITH THE CON
SENT OF THE PROTECTOR.'
This indenture, made, &c., between A. B., of, &c., (eldest son and heir of the body of C. B., of, &c., Esq.,) of the first part; the said C. D., of, &c., [the protector,] of the second part; and [the mortgagee,] of, &c., of the third part. Whereas, rRecite the instrument creating the entail; and recite the contract for the
in default of payment of the before-mentioned sum of L. ; and in case of such sale or sales, the moneys to arise thereby shall be chargeable with, and be applicable and applied as well in payment of the said sum of L. as of the before
mentioned sum of L. , and interest thereon.” Covenant i This covenant may begin thus : “ And also that he, the against incum
- said [mortgagor,] hath not parted with, or otherwise disbrances.
posed of, his equity of redemption, or right to redeem the premises comprised in the said recited indenture of mort. gage, nor at any time heretofore since the execution of the same indenture, made, done, &c., any act,” &c., to in
cumber. The form of The mortgagee having the estate already vested in him, a further
no further conveyance is necessary, it being only requisite to charge.
recite the security; and then, after stating that the money remains due, and acknowledging the receipt of the further sum advanced, the mortgagor should covenant that the mortgaged premises shall be a security as well for the sum already secured as for the further advance; and add a declaration by him that the premises shall not be redeemed or redeemable until the two several sums are paid; with a covenant for payment of the further sum, and with covenants that the mortgagor hath done no act (since the execution of the mortgage) to incumber ; and to further assure the premises. (See p. 100.)
"If the mortgagor be tenant in tail in possession, recite the deed, or will, creating the estate tail, the contract for the loan, and omit the recital as to the protector's consent.
loan.] "[And whereas the said C. D., in order to enable Recital of the said A. B. to make an effectual security for the said sum of, &c., and interest, as against all persons claiming in remainder or reversion expectant on the estate tail of the said A. B., of and in the lands and hereditaments hereinafter described, and intended to be hereby granted and released, hath agreed to join in these presents, for the purpose of testifying his consent to the conveyance, and disposition intended to be bereby made.] Now, this indenture wit- Testatum. nesseth, that, in pursuance and performance of the said recited agreement, and in consideration of the sum of, &c., the receipt, &c., he, the said A. B., (with the consent and approbation of the said C. B., as such protector as aforesaid, testified by his being a party to, and executing these presents,] hath granted, bargained, sold," disposed of, and confirmed, and by these presents intended to be forth with enrolled in her Majesty's High Court of Chancery, doth, &c., unto the said [mortgagee,] and his heirs, all that the remainder of him, the said A. B., expectant on the decease of the said C. B., of and in all, &c., together with all houses, &c., and the reversion, &c., and all the estate, &c., to have and to hold the said remainder lands, &c., subject [and without prejudice]
The testatum will be as in the above precedent, varied to suit an estate in possession, with the usual proviso and covenants.
* If the consent of the protector has been obtained by a separate instrument, recite such deed; and omit the above recital, and the other parts within brackets. (For the definition of the protector, see 3 and 4 Will. IV., c. 74, s. 22, ante ; and for his powers, s. 34 of the same act; and see Observations on the Protectorate, post. p. 591.)
* The conveyance by way of mortgage is taken by bargain and sale, as the deed must be enrolled, and therefore the expense of the lease for the year is saved. [The enrolment must be in Chancery within six calendar months after its execution, 3 and 4 Will. IV., c. 74, s. 41 : see ante, p. 365 and 158.]