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meantime, upon trust, after payment of all expenses attending the said sale, and the performance of the trusts herein contained ; [to pay unto the said C. D., his executors, administrators, or assigns, the sum of L. , with all interest which shall be then due for the same. And also to pay to the said E. F., his executors, administrators, and assigns, the sum of, &c., with, &c.,] (or) [unto the said C. D. and E. F., their executors, administrators, and assigns, the said sum of L. , and all arrears of interest, and other sums of money, if any due and owing to them upon or by virtue of these presents,] and after full payment and satisfaction of the said principal, interest, and other moneys upon trust, that he, the said (trustee,] his heirs, executors, administrators, or assigns, shall and do pay the residue (if any) of the moneys to arise by such sale unto the said [mort. rusts of pregagor,] his executors, administrators, or assigns,
payment of and, if any part or parts of the said
and the money. premises, shall then remain unsold, reconvey and reassure the same unto the said [mortgagor,] his [heirs] or assigns, or as he or they shall direct or appoint. And it is hereby declared, that the purchaser or Purchasers purchasers of the said hereditaments and premises not bound to shall not be obliged to see to the application of his, see to the ap
plication of her, or their purchase-money, after paying the same purchaseto the said (trustee,] his executors, administrators, money. or assigns, and taking his, her, or their receipt for the same ; which receipt shall be a good discharge for all money therein expressed to be received. [Add covenant for payment of the mortgage-money, p. 97, for quiet enjoyment, and for further assurance, p. 101.] Provided, lastly, and it is hereby declared, Proviso in that in case the said (trustee,] his heirs or assigns, case of trustee
declining, &c. shall decline, refuse, or become incapable to act in the trusts aforesaid, it shall and may be lawful for the said [mortgagees,] their executors, administrators, or assigns, to appoint another trustee in his or their place, to whom the said trust property and premises shall, with all convenient speed, be conveyed; and
such new trustee shall have, and may exercise, the same powers as well before as after such conveyance,
in the same manner as if his name had been inserted Trustee's in- in these presents, and that neither the said nor demnity
any future trustee shall be answerable for any loss clause.
that may befall the said premises, unless the same shall happen by or through his or their wilful default. In witness, &c.
SHORT MORTGAGE OF PERSONALTY.
This indenture, made, &c., between A. B., of, &c., of the one part, and C. D., of, &c., of the other part. [Recite the loan or the amount due and owing.] Now, this indenture witnesseth, that, in consideration of, &c., he, the said A. B., hath granted, bargained, sold, assigned, transferred, and set over, and by these presents doth, &c., unto the said C. D., his executors, &c., all, &c. To have and to hold all and singular the said, &c., unto the said C. D., his executors, administrators, and assigns for ever. Provided always, and it is hereby agreed and declared, that if the said C. D., his executors, administrators, or assigns, or any of them, do or shall well and truly pay, or cause to be paid, unto the said A. B., his executors, administrators, or assigns, the sum of L. , of lawful, &c., with interest for the same, after the rate, &c., then these presents, and every clause, article, condition, and thing herein contained, shall cease and
· Here may be added, “In trust at any time hereafter to enter upon the said premises, to make sale of the same goods, &c., by public auction or private contract, and out of the produce thereof, after paying the expenses of the sale and other charges, to pay or retain the said sum of, &c., so lent and advanced as aforesaid, (or so due and owing as aforesaid,) with all interest that may be then due thereon ; and after satisfaction thereof, in trust to pay the residue of such moneys unto the said A. B., his executors, administrators, and assigns.”
be void, anything, &c. [Covenant by mortgagor for payment of the money, see p. 97.] In witness, &c.
FURTHER CHARGE BY APPOINTMENT.
or a further
This indenture, made, &c., between A. B. of the Parties. one part, and C. D. of the other part. [Recite the Recital of momortgage. And whereas there is now due and owing ney owing. unto the said C. D., on the said recited security, the principal sum of L.100 only, all interest for the same having been paid and discharged up to the day of the date hereof ;) and whereas the said A. B., hav. Application ing occasion for the further sum of 1.50, hath applied form to and prevailed upon the said C. D. to advance and lend him the same on such security by way of further charge, as hereinafter contained. Now, this in- Operative denture witnesseth, that, in consideration, &c., the part. receipt, &c., he, the said A. B., for himself, his heirs, &c., doth covenant, &c., to and with the said C. D., his executors, &c., and also direct, limit, and appoint, that all and singular the said messuages, &c., and every part thereof, with their appurtenances, shall from time to time, and at all times hereafter during the remainder of the said term of five hundred years, stand, remain, and continue charged and chargeable with, and be a security unto the said C. D., his executors, &c., for the payment as well of the said sum of L.50 now advanced and lent, as of the said sum of L.100 before lent and advanced, making together the sum of L.150, with interest on the said several sums after the aforesaid rate of and that the said messuages, &c., or any part thereof, shall not be redeemed or redeemable, until full payment and satisfaction shall be made unto the said C. D., his executors, &c., as well of the said sum of L.50 now advanced, and the interest thereof, as of the said sum of L.100, and the interest thereof; any. thing in the said in part recited indenture contained to the contrary notwithstanding. [Covenant for Covenant.
payment of principal and interest, p. 97.7 In witness, &c.
OBSERVATIONS ON MORTGAGES.
· The duties of the solicitor of a party about to lend money on mortgage are, in many respects, the same as those which devolve upon him when acting on behalf of a purchaser, and the observations which have been made with reference to the investigation of the title and protection against dower, and other incumbrances, on the investment of money, in the purchase of land, apply with more or less force to investments by way of mortgage only. But where the security is ample, and there is no reason to anticipate the necessity of resorting to a sale as a means of obtaining repayment of the money advanced, a mortgagee would scarcely be justified in insisting upon as rigid an investigation of the title as would be proper and necessary on a purchase ; for, by so doing, the difficulties which drive a person to borrow money would be considerably increased by great expenses, for which the party lending would obtain no adequate return.
Where an estate is of a value which puts the adequacy of the security beyond all doubt, and, from the circumstances of the case, (as where the property has been some years in a family,) there is no reason to doubt the goodness of the title, a very moderate degree of investigation only will be necessary. The dangers to be guarded against in accepting the title of property which has been for any length of years in one family are not, generally speaking, those aris
* The preparation of the securities in all mortgage transactions is the duty of the solicitor of the mortgagee; Kennedy v. Green, 3 M. and K. 699. See also Painter v. Linsel, 9 L. J. 151, C. P. N. S.
ing from the adverse claims of strangers, but from some member of the family claiming under a will or settlement which may have been suppressed or forgotten, and under which the estate of the apparent owner in fee may be only that of tenant for life or in tail. To guard against claims arising from this Source, a statement of intestacy and heirship should never be relied upon without the production of letters of administration, or a search in both the prerogative and district ecclesiastical court, to ascertain whether any will is in existence.
When it appears that the party had any vested interest in the property at the time of his inarriage, whether in possession or reversion, and rests his title upon the statement that no settlement was then made, a statutory declaration of that fact should be obtained from the parties, and where it is stated that a settlement was made, but that the property in question was not included in it, that fact should be ascertained by the production of the settlement itself.
Where the property is of much greater value than the sum proposed to be lent upon it, and not subject to any incumbrances, a mortgage for a term of years may with propriety be taken, and then the estate in the premises and the right to the money will, upon the mortgagee's death, devolve upon the same person, and prevent any inconvenience arising from the heir of the mortgagee being an infant at the time of the redemption of the premises; but where, from the value of the property, or other circumstances of the case, it is considered advisable that the mortgagee should have the power of obtaining repayment by a sale of the property, the mortgage should be in fee with a full power of sale, which should authorize the mortgagee to sell without the concurrence of the morigagor, to give valid receipts for the purchase-money, to pay off any prior incumbrances, or sell subject to them; and though, for the mortgagor's protection, there should be a provision for giving him a reasonable notice (as for three or six months) previous to