granted by a mortgagee, while in possession, are binding on all prior incumbrancers, and on the persons interested in the equity of redemption (c). The power of leasing may be excluded or varied, and further leasing powers may be conferred on the mortgagor or the mortgagee, and are to be exercised, unless a contrary intention is expressed in the mortgage, as if they were conferred by the Act. It appears, however, that an express power to lease, not in accordance with the Act, cannot be exercised so as to affect the estate of any incumbrancer prior to the mortgage. The statutory powers arise only in the case of mortgages executed since 1881, but they can by agreement in writing between the mortgagor and mortgagee be applied to a mortgage made before 1882, though not so as to affect the interest of an incumbrancer who does not concur. (See form, 1 K. & E. 914). If an express power of leasing is inserted, it should be given to the mortgagor till sale, entry by the mortgagee, or foreclosure, and to the mortgagee after entry by him. (See form, 2 K. & E. 46.) It is sometimes given to the mortgagor only. A lease under the statutory power, or under an express power contained in a mortgage made since 1881, takes effect as a demise out of the estate of all the persons whom the Act enables the person exercising the power to bind (d); a lease under an express power in a mortgage before 1882, made by the mortgagor, took effect as an appointment of the use; but a lease made by the mortgagee took effect as a demise out of his estate. When a lease is made under the power, whether express or statutory, the legal mortgagee is the person seised in reversion expectant on the term, and as such is entitled to the benefit of the proviso for re-entry contained in the lease; and after he has given notice to the tenant to pay rent to (c) See C. A. 1881, s. 2 (vi), defining "mortgagor "as including any person deriving title under the original mortgagor or entitled to redeem a mortgage, &c. (d) Municipal &c. Building Society v. Smith, 22 Q. B. D. 70. LEASES NOT MADE UNDER POWER. him, he can distrain for non-payment, while at any time until the mortgagee has given notice to the tenant to pay rent to him, the mortgagor can sue for the rent in his own name (Judicature Act, 1873; 36 & 37 Vict. c. 66, s. 25, sub-s. 5), and can distrain for rent and justify as the mortgagee's bailiff (e). 161 Where a lease is made not It is convenient here to consider the remedies of a mortgagee or mortgagor for obtaining payment of rent in cases where a lease is made by a mortgagor not under the statu- under tory or an express power. 1st. Where the lease is made before the mortgage. In this case the effect of the mortgage deed is to transfer to the mortgagee the reversion expectant on the term demised, and with it the rent; and, if he chooses, he may give notice (f) to the tenant to pay the rent to him, and after giving notice, may enforce payment by distress. But suppose that, instead of giving notice, he permits the mortgagor to go on receiving the rent, the tenant is safe in paying it to the mortgagor (4 Anne c. 16, s, 10; Rev. Stat. 4 & 5 Anne, c. 3); and the mortgagor can sue for rent in his own name (Judicature Act, 1873, s. 25, sub-s. 5, also C. A. 1881, s. 10), and can distrain for it as the bailiff of the mortgagee (Trent v. Hunt, 9 Ex. 14). The mortgagee, whether he has or has not given notice to the tenant to pay rent to himself, can enforce the proviso for re-entry contained in the lease, if the tenant pays neither mortgagor nor mortgagee. 2nd. Where the lease is granted after the mortgage, by the mortgagor alone. power. Here the mortgagor can distrain for the rent, or under a proviso for re-entry he may maintain an action to recover possession, unless the mortgagee has given notice to the tenant to pay rent to him, and the tenant has by payment or other act signified consent; for, owing to the estoppel arising from the lease, the tenant cannot set up the mortgagee's title against the mortgagor, until the mort(e) Trent v. Hunt, 9 Ex. 14. (f) Moss v. Gallimore, Doug. 279. 11 E.I.C. Group VI. Attornment clause (i). gagee asserts it (see Judicature Act, 1873, s. 25, sub-s. 5). The mortgagee may eject the tenant by his title paramount; or he may distrain for non-payment of rent after he has given notice to the tenant to pay rent to him, and the tenant has by payment or other act signified consent, in which case he becomes a yearly tenant of the mortgagee (g). The mere fact of the tenant remaining in possession after notice is not sufficient to make him tenant to the mortgagee (h). Group VI. The clauses of this group, as inserted in mortgages prior to 1882, consisted of (a) The power of sale. (b) The clause appointing a receiver. Formerly, where part of the property consisted of land, and was in hand, either an attornment clause or a power of distress was inserted. The effect of the attornment clause was to make the mortgagor the tenant of the mortgagee (k) at a rent, which was generally equal in amount to the interest, and thus to enable the mortgagee if the interest was not paid to distrain for the rent. The effect of the power of distress was to enable the mortgagee to distrain for the interest as if it were rent. By the Bills of Sale Acts, 1878 and 1882, clauses of this nature are to be deemed "bills of sale within the meaning of the Act of any personal chattels which may be seized or taken" (1) under them; and every bill of sale for securing the payment of money must be in a specified form (m) to which a mortgage of land cannot conform. These clauses have therefore fallen into disuse, except in mortgages which are made by a company and are capable of registration under the Companies Clauses (g) Corbett v. Plowden, 25 Ch. D. 678. (h) Towerson v. Jackson, (1891) (i) See 2 K. & E. 50, note. 2 Q. B. 330. The tenancy created by the attornment clause is determined by the death of the mortgagor; Scobie v. Collins, (1895) 1 Q. B. 375. (1) 41 & 42 Vict. c. 31, s. 6. See M. L. P. P. 98. (m) 45 & 46 Vict. c. 43, s. 9. See M. L. P. P. 102, 423. POWER OF SALE. Act, 1845, or the Companies Act, 1862; for such mortgages do not fall within the scope of the Bills of Sale Act, 1878 (n). But, as the effect of the attornment clause is to enable the mortgagee to recover possession of the land (R. S. C., Ord. III. r. 6) on non-payment of the rent, it may in some cases be advantageous to insert such a clause. sale. 163 (a) The mortgagee is at law the owner of the mortgaged Power of property; but, as the mortgagor remains the owner in Equity, the mortgagee cannot sell it without some express power or statutory authority. Notwithstanding the statutory power of sale conferred on mortgagees by Lord Cranworth's Act (23 & 24 Vict. c. 145) in cases where the mortgage was made by deed, it was the usual practice to insert an express power of sale in mortgages made before 1882. Where a sale and conveyance were made pursuant to the power, the legal estate passed to the purchaser because the mortgagee was the owner at law, but the equitable interest passed because, and only because, the mortgagee was expressly authorised to convey it. In other words, the express power was inserted merely for the purpose of excluding the rule of Equity that the mortgagee could not sell so as to give a title against the mortgagor, and therefore it is sometimes called an equitable power (o). If a mortgagee who had no power to sell were to sell and convey to a purchaser, the latter would obtain the legal estate, but he would be liable in Equity to reconvey it to the mortgagor on being paid the amount due on the mortgage. The power of sale inserted in mortgages before 1882, when properly framed, consisted of seven clauses, most of which are retained in the express power of sale if inserted in a mortgage since 1881. See form in Stud. Prec. 54, note. By the first of these authority to sell, at any time after The authority the day appointed for payment, the mortgaged property, to sell. without the consent of the mortgagor, was given to the person or persons who should from time to time be (n) Re Standard Manufacturing (0) M. L. R. P. 300. Co., (1891) 1 Ch. 627. Heir to concur in convey ance. entitled to the mortgage debt; that is to say, to the mortgagee, "his executors, administrators, or assigns"; or, if there were several mortgagees, to them "or the survivors or survivor of them, or the executors or administrators of such survivor, their or his assigns." The power was not given to the heir of the mortgagee, as he had nothing to do with the money, but was only a trustee of the legal estate in the land for the persons entitled to the mortgage debt. It was necessary to give the power of sale to the assigns, because otherwise a devisee or transferee of the mortgage would not be able to exercise it (Bradford v. Belfield, 2 Sim. 264.) If the mortgage was made subject to any existing charges, power was given to sell either subject to or free from existing charges, and in the latter case with power to pay them off out of the purchase money, or on any other terms of indemnity against them. As, in the absence of any special direction in the power of sale, it was the duty of the mortgagee in selling under his power to sell under proper conditions, it was unnecessary to give him special authority to sell under such conditions; but such express authority was usually given in practice; and similarly, express authority was always given to sell either by public auction or private contract, although under a general power of sale not containing such express authority, the mortgagee might sell in either manner. This appears to be one of the many cases where the common forms include some words not actually essential to the operation of the deed, but convenient as pointing out the rights or duties of the parties acting under it. On the death of a mortgagee before 1882, his legal personal representative became entitled to the mortgage debt, while the legal estate in the land passed to his heirat-law or devisee. The legal personal representative was the person to sell, but he could not convey the legal estate to the purchaser. It was therefore declared by the second clause in the power of sale that, on any sale under the |