FEE. Witnesseth, release to mortgagee. Parcels. MORTGAGE IN that, in further pursuance of the said agreement, and for the considerations aforesaid, he the said A. B. hath granted, released, and confirmed, and by these presents doth grant, release, and confirm (f) unto the said C. D., (in his actual possession now being by virtue of a bargain and sale to him thereof made by the said A. B., &c., supra, p. 198) and his heirs and assigns: THAT &c., [parcels-general words]: To HAVE AND TO HOLD the said messuages, buildings, cottage, and hereditaments, and all and singular other the premises hereinbefore released, or expressed and intended so to be, (subject to the said several annuities of £4, £2, and £1, so far as the same are charged thereon), unto the said C. D., his heirs and assigns, to the use of the said C. D., his heirs and assigns, for ever, subject nevertheless to the proviso for redemption hereinafter contained: PROVIDED ALWAYS, and it is hereby agreed and declared between and by the said A. B. and the said C. D., and the true intent and meaning of them and of these presents is, that if the said A. B., his heirs, executors, administrators, or assigns, shall pay or cause to be paid to the said C. D., his executors, administrators, or assigns (g), the sum of £1,000, and the sum of £50 as and for one year's interest for the same, at the rate of £5 for Proviso for redemption. Operative words. As to speci fying the place and hour of payment. "hereinafter contained" refers. (See supra, p. 20). The proviso is always referred to as a proviso for redemption, although in fact it is now generally a proviso for reconveyance. (See infra, note (i), to this Precedent). (f) With regard to the operative words employed, see supra, p. 196, n. (i). The word "alien" is never used in mortgages, because it is understood to mean an absolute parting with the whole estate. (Jacob's Law Dictionary, ALIENATION). (g) It was formerly customary to specify the place of payment, for when no place of payment is appointed, the money being a sum in gross, and collateral to the title of the land, the mortgagor must tender the money to the mortgagee personally, unless he be out of the realm; it would not be sufficient to tender it on the land, as in the case of a rent. (Co. Lit. 210. b.; Lit. sect. 340, 342). Sometimes, too, the hour was appointed. (Lit. sect. 342). But these precautions were chiefly intended to guard the mortgagor from the effect of the rigour with which the condition for redemption was construed at common law; and at the next £100 for a year, making together the sum of £1,050, in without , any present day it is considered sufficient to name the day of payment without fixing the hour or place. It is seldom intended that the principal is to be paid on the day named in the condition, and no difficulty is usually experienced in finding the mortgagee when the money is paid on the day. The shape of the present proviso being that of a re-conveyance, and not of a condition for defeating the mortgagee's estate, precludes the danger of his estate being defeated by a tender, in his absence, at the place and time fixed, and equity would doubtless relieve, if necessary, against the consequences of such a manœuvre. Nothing is now gained by fixing the place and hour of payment, and the practice has been very properly discontinued. The mortgage-money and interest is always made payable to the mortgagee, his executors, administrators, or assigns; but if from inadvertence or ignorance it should be made payable to the mortgagee, his heirs, executors, administrators, or assigns, and the mortgagee die before the day of payment, the mortgagor may on that day pay either to the heirs or to the personal representatives; but if he do not pay on that day, he must pay to the personal representatives. (Co. Lit. 210. a.; Thornborough v. Baker, 3 Swanst. 628). Of course the money may be made payable to the heir. (Lit. sect. 339; Co. Lit. 210. a.) (h) The words in brackets are not of much use, and are often omitted, Sometimes in lieu of them, the words "for or in respect of any taxes, rates, outgoings, matters, or things," are inserted between "abatement" and "whatsoever." See infra, Precedent LV. MORTGAGE IN FEE. To whom the mortgagemoney should be made payable. FEE. MORTGAGE IN the said sum of £1,050 or any part thereof, or upon the said C. D., his heirs, executors, administrators, or assigns, for, upon account, or in respect of the said messuages, buildings, hereditaments, and premises, or any of them, or of the said sum of £1,050, or any part thereof, by authority of Parliament, or otherwise howsoever], then and in such case he the said C. D., his heirs or assigns, shall and will at any time after such payment shall have been so made as aforesaid, upon the request and at the costs and charges of the said A. B., his heirs or assigns, re-convey the said hereditaments and premises hereinbefore appointed and released, or expressed and intended so to be, unto the said A. B., his heirs and assigns, or as he or they shall order and direct (i), free from all incumbrances what Ancient and modern form of redemption. (i) The original form of mortgages was that of a conveyance, with a the proviso for proviso or condition, either in the same or in a separate deed, for making the conveyance void on payment of the mortgage debt and interest at a given day. And hence the use of the terms "proviso for redemption," "equity of redemption," and the like phrases. (Coote on Mortgages, ch. 2). But this form was extremely objectionable on account of the strictness with which conditions are construed, and of the difficulty of preserving evidence of the payment of the mortgage-money on the exact day appointed. The money was seldom paid on the day appointed, and it became the practice to procure a re-conveyance from the mortgagee on all occasions, so as to render it certain that the legal estate had been again vested in the mortgagor. The proviso soon adapted itself to the new practice, and is at the present day in all mortgages in fee-simple, not a proviso for redemption, or for making void the estate of the mortgagee, but a proviso that after payment the mortgagee shall re-convey to the mortgagor, or as he shall direct. In mortgages of copyholds, and sometimes in mortgages for terms of years, the ancient form is still employed. (See the Precedents, infra; and see further, ante, Vol. 1. Art. MORTGAGES). As to the revocation of an a new limit The words "or as he or they shall order or direct" are, perhaps, not very essential, as the person who had the right to redeem would, ipso facto, have the right to direct how the legal estate should be conveyed. (See supra, p. 101, n. (d) ). It was formerly, and in respect of title is still a question of great inexisting will by terest, whether, when the estate before the mortgage stood limited to uses to bar dower, and the proviso was for a re-conveyance to the mortgagor, his heirs and assigns, or as he or they should direct, and the mortgagor before making the mortgage had made a will devising the estate, the devise was not revoked by the alteration of estate occasioned ation of the equity of redemption. FEE. mortgage soever, made, done, or committed by the said C. D., MORTGAGE IN his heirs, executors, administrators, or assigns, or any of them, so as for the doing thereof the said C. D., his heirs, executors, administrators, or assigns, be not compelled or obliged to go or travel from the place or places of his or their, or any of their usual abode or dwelling (j): AND Covenant for payment of the THE SAID A. B. doth hereby for himself, his heirs, executors, and administrators, covenant with the said C. D., money, his executors and administrators, that he the said A. B., his heirs, executors, or administrators, shall and will pay or cause to be paid unto the said C. D., his executors, administrators, or assigns, the aforesaid sum of £1,050 in the parts, shares, and proportions, and on or at the days and times in the aforesaid proviso mentioned or appointed for payment thereof, without any deduction or abatement whatsoever, according to the true intent and meaning of these presents (k): AND IN CASE the said principal and interest. by the proviso. The devise was of course revoked at law, and the question was, whether the proviso for redemption did not amount to a new limitation of the equitable estate, so as to revoke the devise in equity likewise. The point as respects the draftsman has been rendered of no practical importance by the stat. 1 Vict. c. 26, (see sect. 23), and therefore requires no discussion here; but it must, for some time to come, frequently occur in the investigation of title. The principal authorities on the matter are Tickner v. Tickner, cited 1 Wils. 309, 3 Atk. 742, 745, 750, Amb. 117; Kenyon v. Sutton, cited 2 Ves. Jun. 631; Rawlins v. Burgis, 2 Ves. & Bea. 382; Ward v. Moore, 4 Madd. 368; Brain v. Brain, 6 Madd. 221; Bullin v. Fletcher, 1 Keen, 369; S. C. 2 My. & Cra. 432, 1 Sugd. Pow. 368, 2 Sugd. Pow. 11. (j) This last provision is not perhaps essential, but it is the usual form, and in some cases may be a protection to the mortgagee. (k) If a man mortgage his estate without giving a bond, or entering into a covenant with the mortgagee, the mortgagee becomes a simple contract creditor of the mortgagor. If there be a bond or covenant, the mortgagee becomes a specialty creditor; if a warrant of attorney, on which judgment is entered up, a judgment creditor; but in all these cases it is the contract which determines the nature of the debt, and in all alike the mortgaged estate is merely to be regarded as a collateral security. (1 Bro. C. C. 464, 465). Now, a specialty creditor has many priorities and advantages over simple contract creditors; (2 Williams's As to the co venant for payment of the money. MORTGAGE IN Inutility of a bond where there is also a covenant. As to taking warrants of attorney. Covenant for payment of interest. Suggestion as to the situation and frame of covenant. As to the time and mode of payment after default. sum of £1,000, or any part thereof, shall not be paid at the time herein before mentioned or appointed for Executors, 666; 1st edit); and therefore, all mortgage deeds contain a covenant for payment of the principal money and interest, so as to constitute the mortgagees creditors by specialty. A bond is sometimes taken in addition, but this seems altogether useless, and is discarded by the most approved practice of the present day. Perhaps the reason for taking bonds may have been, that, before the statute 1 Will. 4, c. 47, actions of covenant could not be sustained against the devisees of the covenantor; but if it were so, the reason has now ceased. Judgment creditors have certain priorities and advantages over specialty creditors; (2 Williams's Executors, 656, 1st edit.; Berrington v. Evans, 3 You. & Col. 384); but it is not the practice to take a warrant of attorney to enter up judgment against the mortgagor except in special cases. By the 6 Geo. 4, c. 16, s. 108, and the cases which have been decided on the construction of it, judgments entered up on warrants of attorney are rendered of little avail in cases of bankruptcy. (See Arch. Bank. Law, 119, 128, 6th edit.) Unless it is intended that the principal money shall be actually paid on the day appointed, the subsequent part of this covenant should be always employed, so as to give the mortgagee the power of suing for the interest independently of the principal. It may be observed, that, although custom has established that the covenant for payment of the money shall follow the proviso for redemption, and shall be framed with a reference to the proviso, yet that it would be more convenient and more conformable to the nature of a modern mortgage, if the covenant were inserted as the first witnessing part of the deed, and were made perfect in itself, and the proviso for redemption were framed with a reference to the covenant. This would enable the pleader, in framing a declaration on the covenant, to avoid all mention of the mortgage, and would make the mortgage appear to be, as it really is, a collateral security for the debt. If the mortgagor do not pay the principal money on the day appointed, he cannot afterwards compel the mortgagee to receive payment till after six calendar months' notice, unless the mortgagee has demanded it; (Ca. & Opin. Vol. 2, p. 51; Sharpnell v. Blake, 2 Eq. Ca. Abr. 603, pl. 34); and in order to stop the interest on the mortgage, the notice must be given, and tender made on the day the notice expires. (2 Ves. 372, 678; see, too, Lutton v. Rodd, 2 Cha. Ca. 206; Gyles v. Hall, 2 P. Wms. 378; Austen v. Executors of Dodwell, 1 Eq. Ca. Abr. 318, pl. 9). On a bill for foreclosure the mortgagor is entitled to six calendar months to redeem; (Coote on Mortgages, 599, 2nd edit.; Sharpnell v. Blake, ubi supra); and on a proper application the time will be enlarged, |