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any term or term of years) (b): To hold the same unto the Assignment said I. K. and his heirs: To such uses, upon such trusts, Attendant and to and for such intents and purposes, and with, under, Terms. and subject to such powers, provisoes, and declarations, as the said I. K. should, by any deed or deeds, with or without power of revocation and new appointment, direct, limit, and appoint, and for default of and until and subject to such direction, limitation, or appointment, to the use of the said L K. and his assigns, during his life, without impeachment of waste, with remainder to the use of the
said and his heirs, during the life of the said I. K., in
trust for him and his assigns, with remainder to the use of the said I. K., his heirs and assigns for ever: And it is by the said indenture now in recital declared, that, if the said I. K. shall die leaving a widow, such widow shall not be entitled to dower out of or in the said hereditaments and premises, or out of or in any part thereof: And Whereas —of desire that the said I. K. is desirous that the said premises, respectively assignecUo te comprised in the said several terms of 1,000 years and 1,000 attend, years respectively, should be assigned by the said A. B. to the said L. M., his executors, administrators, and assigns, upon the trusts and in manner hereinafter mentioned: NOW THIS INDENTURE WITNESSETH, that, for Witue«.th. effectuating the said desire, and in consideration of the premises, the said A. B., at the request and by the direction of the said G. H., and with the privity and approbation of the said C. D. and E. F., and on the nomination of the said I. K., (testified by their respectively being parties to and executing these presents) hath assigned, and by these presents doth assign unto the said L. M., his executors, administrators, and assigns, All Such and so P»rceli. many, and such part and parts of the said messuage,
lands, and hereditaments, by the said indenture of the
day of [the purchase-deed] released or expressed,
(6) An exception of this kind must always be inserted if any of the conveying parties are trustees of the term. It will be observed, that, in this case, the legal estate of freehold being outstanding, prevented the merger as to one moiety of the term, which would otherwise have ensued.
Assignment and intended so to be, as by the said indenture of the
Attendant day of [the assignment to A. B.J were assigned, o:
TEI""S. expressed to be assigned, unto the said A. B., his executors administrators, and assigns, for the respective residue thei. to come of the said several terms of 1,000 years, and 1,000 years respectively, with the appurtenances, And All the
Habendum. estate, &c: To Have And To Hold the said messuage, lands, and hereditaments, and all and singular other the premises hereinbefore assigned, or expressed and intended so to be, unto the said L. M., his executors, administrators, and assigns, for the residue now to come therein respectively of the said terms of 1,000 years and 1,000 years
Declaration of respectively (c): Nevertheless in trust for the said I. K.,
tnlst' his appointees, heirs, and assigns, and to assign and dispose
of the same respectively, as he or they shall from time to time direct or appoint, and in the meantime upon trust to permit the residue of the same several terms of years respectively to wait upon and attend the reversion, freehold, and inheritance of the premises therein respectively comprised, and to protect the same from all mesne incumbrances, if any such there be. [Covenant by A. B. with L. M., his executors, administrators, and assigns, against incumbrances, supra, p. 458.] In Witness &c.
(c) The following more elaborate form is sometimes employed:—
"To Have And To Hold all such and so many, and such part and parts of, the said premises hereinbefore assigned, or expressed and intended so to be, as are comprised in the said term of years, created by the said
indenture of the day of , unto the said [trustee'],
his executors, administrators, and assigns, for the residue now to come of the same term, upon and for the trusts, intents, and purposes hereinafter declared, expressed, and contained of and concerning the same; And To Have, &c"
A similar habendum for the other term. A common declaration of trust is afterwards inserted, introduced in the manner mentioned in the preceding note. Of course, if the terms are for different numbers of years, there is no occasion to distinguish them by reference to the deeds y which they were created. (See, further, on assignments of terms, the notes to Precedent LI., supra).
MORTGAGE in Fee, with Power Of Sale (a).
THIS INDENTURE, made &c. Between A. B., of &c, [mortgagor], of the one part; and C. D., of &c, [mortgagee], of the other part: Whereas, by indentures Recital of con
of lease and release, bearing date respectively the to W°dower8e8
and days of , the release being made, or expressed in favour of the
to be made, between [parties], the messuages, farms, lands, mortga8or. and other hereditaments therein mentioned, including the hereditaments hereinafter particularly mentioned, and intended to be hereby appointed and released, were conveyed and assured, (but as to certain of the same hereditaments therein mentioned, (including the said hereditaments intended to be hereby appointed and released), subject to certain annuities of £4, £2, and £1, chargeable thereon, by virtue of the will of I. S.), to such uses upon and for such trusts, intents, and purposes, and with, under, and subject to such powers, provisoes, declarations, and agreements, as
(a) The narrative recitals, witnessing parts, and babendums of mort- General regages, do not differ in any material particular from the corresponding marks on the parts of purchase-deeds, except that to each witnessing part which has ^"^gages " ° no habendum, and to each habendum is subjoined a reference to the subsequent proviso for redemption. Hence, many of the preceding observations on purchase-deeds, particularly of those contained in the notes to Precedents XVI. and XVII., will be equally applicable to mortgages; and the following notes will be chiefly directed to those things which arc peculiar to mortgages.
Mortgage In the said A. B. should hy any deed or deeds, instrument or l^Il instruments in writing, with or without power of revocation and new appointment, to be by him sealed and delivered in the presence of two or more credible witnesses, direct, limit, or appoint, and in default of and until and subject to such direction, limitation, or appointment, to the use of the said A. B. and his assigns for his life, with remainder to the use of the said [trustee] and his heirs, during the life of the said A. B., in trust for him and his assigns, with remainder to the use of the —of agreement said A. B., his heirs and assigns, for ever (b): And 'r Whereas the said C. D. has agreed to advance and lend to the said A. B. the sum of £1,000, upon having the repayment of the same, with interest after the rate of £5 per cent, per annum, secured in manner hereinafter Witnessed,, mentioned (c): NOW THIS INDENTURE WIT
(6) With respect to this recital, see supra, p. 207, n. (6); p. 209, n. (c); and p. 210, n. (<*).
Recital of the (f) The recital of the contract for the loan is somewhat shorter than
contract for the the usual form, which runs as follows:—
"And Whereas the said A. B., having occasion for the sum of £1,000, hath applied to and requested the said C. D. to advance and lend him the same, which he the said C. D. hath agreed to do upon having the repayment of the said sum of £1,000, with interest for the same in the meantime, after the rate hereinafter mentioned, secured to him, the said C. D., his executors, administrators, and assigns, in manner hereinafter mentioned:"
There are other forms longer than this, and consisting of two distinct recitals, one mentioning the request and the other the willingness to comply with it; but, as the contract in the text states all that is essential, that, or a nearly similar form, is generally used in this collection. It is not very easy to see why it should be stated, that the mortgagor has occasion for the money, for if he chooses to borrow it without having occasion for it, it is quite the same to the mortgagee; and it appears superfluous to state to whom the repayment is to be secured, for repayment necessarily implies payment to the lender or his representatives. The common expression, that the loan is made at the request of the mortgagor, may well he spared, for his wish for the loan must NESSETH (d), that, in pursuance of the said agree- mort°eaeoe 1N
ment, and in consideration of the sum of £1,000, at or immediately before the sealing and delivery of these presents, to the said A. B. paid by the said C. D., (the receipt Receipt of which said sum of £1,000, he the said A. B. doth hereby acknowledge, and of and from the same and every part thereof doth acquit, release, and discharge the said C. D., his heirs, executors, administrators, and assigns for ever, by these presents), And pursuant to, and by force and virtue, Appointment to and in exercise and in execution of the power or authority mortg»8ee. to him the said A. B. for this purpose given by the said
indenture of the day of , and of every or any
other power or authority in anywise enabling him in this behalf, he the said A. B. doth by this present deed or instrument in writing, sealed and delivered by him the said A. B. in the presence of the two credible persons whose names are intended to be hereupon indorsed as witnesses to the sealing and delivery of these presents by him the said A. B., direct, limit, and appoint that all and singular the hereditaments hereinafter particularly mentioned, and intended to be hereby released, with the appurtenances, shall henceforth go, remain, and be to the use of the said C. D., his heirs and assigns, for ever, subject, nevertheless, to the said several annuities, hereinbefore particularly mentioned, (so far as the same are charged thereon), and subject to the proviso for redemption hereinafter contained (e): AND THIS INDENTURE ALSO WITNESSETH,
obviously be inferred from his accepting it. It is quite enough to recite that the mortgagee has agreed to lend the money upon the intended security.
(d) As to the manner of exercising a power, and the structure of a deed of this nature, see supra, p. 211, n. (e), p. 212, notes (f) and (g).
(e) The reference to the proviso for redemption is often made thus:— Mode of refer"subject nevertheless to the proviso or condition herein- viso for reafter contained for redemption of the said premises." demption.
But there does not seem to be any thing gained by this more elaborate expression. The form sometimes found, of " subject to the proviso for redemption of the same premises hereinafter contained," is erroneous, as making "premises," and not "proviso," the substantive to which