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Married

into

In cases where the transfer does not require any additional act, such as registration, for the completion of the title of the transferee, no transfer is executed by the mortgagor, but a power of attorney is inserted in the mortgage deed enabling the mortgagee to execute a transfer to himself in the name of the mortgagor.

In either of these cases it is desirable to insert the usual power of giving receipts for and the declaration of trust of moneys received in respect of the mortgaged property, and an express power of sale, as there may be some doubt whether the deed is a "mortgage" within the C. A. 1881, so as to imply these provisions. (See 2 K. & E. p. 175.)

The student may have some difficulty in seeing how the mortgagee can enforce his security. The mortgagee may do this in either of the two following ways, viz.: (1) he may complete his title, either by registration or by executing a transfer to himself in the name of the mortgagor, as the case may be, a process somewhat analogous in its effects to an ejectment by a mortgagee of freeholds. In this case he will, by completing his legal title, render himself liable for calls, &c., and will be mortgagee in possession, and liable to account to the mortgagor as such. Or (2) he may, without completing his own title, sell under the power of sale. In this case he can call upon the mortgagor, as his trustee, to execute a transfer to the purchaser; or, if he thinks fit, he can execute a transfer to the purchaser in the name of the mortgagor by virtue of the power of attorney.

If a married woman be entitled to a chose in action (not woman (c). forming part of her separate estate, either by express declaration or by virtue of the M. W. P. A. 1870, or the Reduction M. W. P. A. 1882), and her husband "reduces it into possession. possession," in other words, obtains payment of the debt during the coverture, he can give a receipt for it, which is binding as against the wife; and apparently, if the debt is immediately payable, he can give a release for it which is binding on the wife (Miles v. Williams, 1 P. Wms. 249); (c) See, as to a married woman's choses in action, M. L. P. P. 385.

WIFE'S MORTGAGE DEBT.

but an assignment by him is ineffectual as against the wife surviving him (even if she joins in the assignment; Prole v. Soady, L. R. 3 Ch. 220), unless the assignee obtains payment of the debt during the coverture, which is equivalent to a reduction into possession by the husband. If the chose in action is not reduced into possession during the coverture, it remains the wife's property if she survives her husband, and passes to him as her administrator if she dies in his lifetime, subject to her debts and to the rights of any person claiming as assignee of the husband. (See post, 302.)

The question as to what amounts to a reduction into possession by the husband is sometimes one of considerable difficulty; the reader is referred to M. L. P. P. 386, and the note in 2 Dav. Prec. Part I. 223.

debt.

201

Where the chose in action is a mortgage debt due to the Wife's mortgage wife, the mortgagor may, of course, pay off the debt if he thinks fit to do so. Unless the debt is the wife's separate property (either by express declaration or by virtue of the M. W. P. A. 1870, or the M. W. P. A. 1882), in which case she can give a receipt for it, the payment must be made to the husband, whose receipt will discharge the mortgagor; and the transaction will operate as a reduction into possession by the husband.

The case of Rees v. Keith, 11 Sim. 388, shows that, where a mortgage debt belonging to the wife, and not being part of her separate estate (either by express declaration or by virtue of the M. W. P. A. 1870, or the M. W. P. A. 1882), is paid to the husband by a third person on behalf of the mortgagor, the husband's receipt discharges the mortgagor, and the wife becomes a trustee of any interest that she has in the subject of the mortgage. It appears to follow that, where a third person pays off the debt, a transfer to him of the mortgage debt and securities, which would bind the wife surviving, could be effected by the husband making an assignment of the mortgage debt by the direction and at the request of the mortgagor, and by the husband or the husband and wife, where her

Reversionary interests of wife.

concurrence is necessary, making a transfer of the mortgaged property.

The reader may ask how the transferee could obtain a good title to the mortgaged property if it be a chose in action assignable in Equity only, and the wife survives her husband, who dies before it has been reduced into possession. The answer is that, as the wife becomes, after the payment to her husband, a mere trustee, she would be obliged, after the husband's death, to assign the mortgaged property to the transferee.

It must in all cases be borne in mind that, where the mortgage debt is secured on land, and the wife is willing to concur in the transfer, no difficulty will arise, for the debt is an interest in land which the wife can pass by an assurance perfected according to the provisions of the Fines and Recoveries Act, 1833. (Williams v. Cooke, 4 Giff. 343; Miller v. Collins (1896), 1 Ch. 573.)

If the mortgage debt is secured on leaseholds, the husband can, if the wife was married and her title accrued before 1883, convey the leaseholds without his wife's concurrence; and if the transfer is made at the request of the mortgagor, no difficulty will arise. But, if the wife concurs, she should acknowledge the deed, so as to bring the case within the principles laid down in Williams v. Cooke.

If the wife's chose in action is reversionary, and consists of pure personalty, but does not form part of her separate estate (either by express declaration or by the M. W. P. A. 1870, or the M. W. P. A. 1882; Lechmere v. Brotheridge, 32 Beav. at p. 369), there was formerly no method by which it could be dealt with so as to bind the wife surviving, because from the nature of the case it could not be reduced into possession (see M. L. P. P. 887). Attempts were made to get over this difficulty by inducing the persons having the prior interests to assign them to the wife, so that they could coalesce with her reversionary interest and render it a present interest that could be reduced into possession; but Courts of Equity decided that in such a case the wife's

WIFE'S SEPARATE ESTATE.

interest remains reversionary for the purpose of affording her protection (d). The effect of the Married Women's Reversionary Interests Act, 1857 (20 & 21 Vict. c. 57, commonly called Malins' Act), is to enable a married woman to dispose by deed acknowledged of reversionary interests of this nature (e), to which she becomes entitled under any instrument made (ƒ) since 1857 (other than her own marriage settlement), unless such instrument contains a restraint on alienation.

The wife's reversionary interest in money charged on land, or in the proceeds of real estate directed to be sold, can, and could even before the Act, be passed by deed acknowledged (see the cases referred to in 2 Dav. Prec. Part I. 223 et seq.).

action

wife's

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Where a wife is entitled to a chose in action (whether Chose in in possession or reversion, and consisting of either pure being personalty, or money charged on land, or of the proceeds separate of land directed to be sold) which forms part of her separate estate. estate (either by express declaration or by virtue of the M. W. P. A. 1870, or the M. W. P. A. 1882), she can dispose of it without the concurrence of her husband.

See further as to the rights of husbands over the property of their wives, post, Chapter XI.; and M. L. P. P. ch. xxi. p. 384.

(d) See Whittle v. Henning, 2 Ph. 731.

(e) The words "future interests" in the act refer to interests to which the married woman has some existing title at Law or in Equity; per Stirling, J., Allcard

v. Walker (1896), 2 Ch. 369, at p.

380.

(f) Where a will is made before 1858 the case is not within the Act though the testator die after 1857. See Re Elcom (1894), 1 Ch 303.

CHAPTER VIII.

When

made use

of.

Effect of

transfer of debt and

of land.

MISCELLANEOUS DEEDS RELATING TO MORTGAGES.

PART I.-TRANSFERS OF MORTGAGES.

A TRANSFER of a mortgage is made use of in either of the following cases :

money, and the In this case the

First. The mortgagee may call in his mortgagor may be unable to pay him off. latter is forced to borrow it from some one else, and a transfer of the existing mortgage and securities is generally taken by the person lending the money, as he thereby gets the same priority for his charge as the original mortgagee had; whereas if a fresh mortgage to the lender were made, other incumbrances might be let in to his prejudice.

Second. When a mortgage is vested in trustees and new trustees are appointed.

The question whether the assignment of the mortgage debt to a transferee enables him to sue for it in his own name has been already discussed (ante, p. 188). In cases where it is desired to enable the transferee to sue for the original mortgage debt, and there is any doubt of the possibility of immediately giving notice to the mortgagor, a power of attorney is given by the original mortgagee to the transferee authorising him to sue in the name of the original mortgagee. The land can be transferred to the transferee at law; and, if the original mortgage be properly framed, he becomes, as the assignee of the mortgage debt, entitled to enforce in his own name all the remedies against the land that the mortgagee could have enforced during the continuance of his security. See as to mortgages made

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