gagee, who, notwithstanding such lease, might turn the tenant out of possession ; and, on the other hand, a mortgagor, upon redeeming, would be entitled to set aside any leases granted by the mort. gagee without his concurrence.k It should not be overlooked in the preparation of such leases, that the lessee's covenants, if entered into with the mortgagor, will not run with the land, they ought, therefore, to be entered into with the mortgagee, his heirs and assigns, or as the mortgagor would, on redemption and reconveyance of the premises, become the assignee of the mortgagee, he would in that character be able to sustain his action on the covenants.1 The mortgagee cannot, of course, be expected to enter into covenants with the lessee, who must, therefore, rest satisfied with the personal covenants of the mortgagor. In leases prepared under powers, great care must be taken to comply with the terms upon which they are authorized to be granted, for without such compliance, a lease would be voidable by any person interested in the reversion who was not a party to it. ment. A lessee has at law as absolute a power of disposi- Restraint tion over his estate, as the owner of any other inte- upon assignrest in property, and, therefore, if it is wished to restrain him from assigning, a provision must be inserted in the lease for that purpose, which, if intended to apply to an underlease, must be made expressly i Keech v. Hale, Dougl. 21; Thunder v. Belcher, 1 East, 449. k Hungerford v. Clay, 9 Mod. 1. 1 Webb v. Russell, 3 T. R. 393; Stokes v. Russell, ibid. 678. The observations above were written with a view to the case of leases where the mortgage is in fee, for if the mortgage were for a term, as it would merge in the reversion on a reconveyance to the mortgagor, he could not be considered as the assignee of the mortgagee's estate. Equitable leaseholds. m to extend to that species of conveyance, as an underlease is not considered as an assignment; and, on the other hand, an assignment is not considered a breach of the provision against underleasing. These provisions are construed very strictly, insomuch that the restraint against assignment has been held not to extend to assignments by operation of law, unless expressly extended to them ;" and that if licence be once given, (even if but in a qualified way, as with reference to part of the land only,) the restraint is gone for ever." In the same spirit it has been held that an assignment subsequently avoided by the bankruptcy of the lessee worked no forfeiture, and that if the lessee, by conveyance from the assignees under his own bankruptcy, became entitled to the lease, he might thenceforth hold the premises free from the restraint against assignment, and it has also been held that a deposit, by way of mortgage, is not a breach of the provision against assignment." It may be useful to mention here, that the subject mortgages of of equitable mortgages by deposit of a lease has recently been the subject of discussion. In a case in 3 Brown's Chancery Cases, 166, Lucas v. Comerford, it was decided that a depositee of a lease was compellable in a court of equity at the suit of the lessor to take an assignment of the lease, in order to give the landlord a remedy at law against him on the covenants. This doctrine was recognised by the Vice-Chancellor in 1835, when he made a decision ma Crusoe v. Bugley, Blackst. 766; 3 Wills. 234; 15 Ves. 265; ante, p. 406. Doe v. Carter, 8 T. R. 57; Goring v. Warner, 7 Vin. Abr. 85, pl. 9; Philpot v. Hoare, Amb. 480; 2 Atk. 219. Dumper's case, 4 Co. 119; Jones v. Jones, 12 Ves. 186. P Doe v. Smith, 5 Taunt. 795. 4 Doe v. Hogg, 2 Car. and P., N. P. cases, 160; Doe v. Bevan, 3 M. and S. 353. r Flight v. Bentley, 7 Sim. 149. in conformity with it; but in a very recent case," he expressed considerable surprise at his former decision, and made a decree in direct opposition to it. Though, till further adjudication on the subject, the latter case must be considered as law, persons accepting the deposit of a lease as a security for a debt, will do well to see that the rent is regularly paid, lest it should turn out that all the security in the case was their becoming sureties to the landlord for his rent. ruptcy. Upon the bankruptcy of a lessee, the lease is not Effect of divested out of him, unless the assignees elect to take lessee's bankit, and consequently his right to vote as a lessee under the 2d Will. IV., c. 45, would not be affected by the bankruptcy till the assignees have made their election; and the lessee, (if the assignees do not elect to take it,) continue liable to the rent accruing subsequent to the act of bankruptcy. It need scarcely be observed, that where a pre- Stamps. mium is paid for the granting a lease, it becomes liable, (certain particular cases excepted,) not only to the stamp, according to the amount of the rent, but also to an ad valorem duty on the premium, on the same scale as on the consideration for a purchase, in which light it is considered. There has been no direct decision upon the point, but it has always been considered, and I cannot believe that a decision will ever be made contrary to that opinion, that no additional stamp is chargeable in respect of the increased rent received for ploughing up pasture, &c." Rents are in all cases apportionable where the Apportionright to receive them changes at any other time than ment of rents. one of the reserved days of payment, either by the death of a tenant for life, or the determination of the interest of any person during his own life; but the apportionment is affected differently in different cir 'Moors v. Choat, 8 Sim. 508. t u Copeland v. Stevens, 1 Barn. and A. 593. See Bythewood's Conveyancing by Jarman, tit. Leases. cumstances. Thus, under the 15th section of 11th Geo. II., cap. 19, (explained by 4th Will. IV., cap. 22, sec. 1,) where the lease was determined by the death of the lessee, whether as being tenant for life, or having as tenant in tail, or donee of a power, created a lease, which, though in itself invalid from want of compliance with the requisitions which were necessary to give it validity, was good for the life of the granter, the representatives of such lessor might recover a proportionate part of the accruing rent; and under the same sections, where the lease determined in the lifetime of the lessee, by the death of any life or lives for which he was holding, a proportional rent is recoverable by such lessor. But under the 2d section of 4th Will. IV., cap. 22, the apportionment is affected in a different way, for in order to free the tenant from any questions between the lessors, he is permitted to pay the whole rent to the heir, from whom the party entitled to the pro That act was passed portionate part may recover it. or any other event during the continuance of the leases, such lease having been granted by a tenant for life or in fee, or under any power, but it subjects such apportioned part to an the changes affecting it. equitable proportion of Under these two acts it will be found, that in all circumstances where an express stipulation to the contrary has not been made, the rent is put upon same footing as interest, and that persons will be entitled to it during the whole time of the con tinuance of their estate as if it had accrued de die in diem. ▾ Whitfield v. Pindar, 2 B. C. C. 662; 8 Ves. 311; Amb. 198; 1 Swanst. 356; 3 Taunt. 331. parte, Smith, ibid. 337; Symons v. Symons, 6 Mad. 207. 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. T |