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the payment thereof, shall and will during so long as the MORTGAGE IN said sum of £1,000, or any part thereof, shall remain due on the security of these presents, pay, or cause to be paid to the said C. D., his executors, administrators, or assigns, interest for the said sum of £1,000, or for so much thereof as for the time being shall remain unpaid, after the rate of £5 per cent. per annum, in equal half-yearly payments, on the and the day of in every

day of year: AND THE SAID A. B. doth hereby for himself, his Covenants by heirs, executors, and administrators, covenant with the said C. D., his heirs and assigns (1), in manner following, (that force.

(Coote 602; Wakerell v. Delight, 9 Ves. 36). But after the time has been enlarged, subsequent interest must be computed on the amount of principal, interest, and costs. (Bruere v. Wharton, 7 Sim. 483).

It is generally assumed in modern practice, that the mortgagor cannot compel the mortgagee to accept payment of the mortgage-money before the day of payment appointed in the proviso for redemption; that the proviso for redemption is, in fact, not merely a restriction on the mortgagee's right to foreclose, but is a substantive agreement between the parties fixing the time of payment: and there can be very little doubt that such is the construction which would now be put on the proviso. A different doctrine seems, however, formerly to have prevailed; (Talbot v. Braddil, 1 Vern. 183, 395); but the circumstances of that case and of the instance given in it are peculiar, and would hardly be deemed applicable to the case of an ordinary mortgage.

The covenant for payment of the mortgage-money is entered into with the mortgagee, his executors and administrators, and is of course a personal covenant, not running with the land. Thus, where a mortgagee for a term of years bequeathed the mortgage debt to A. B., and appointed him one of the executors, and the co-executor assented to the bequest, it was held, that A. B. could not maintain an action in his own name, because the covenant with the mortgagee was collateral, and was broken in his lifetime. (Canham v. Rust, 2 J. B. Moore, 164).

mortgagor that power is in

Covenant for

payment of the money a per

sonal covenant.

(1) The covenants for title are entered into with the mortgagee, his Covenants for title in mortheirs and assigns, and run with the land. They are obviously of very gages. little use during the continuance of the mortgage, as the mortgagor, by bringing an action on them, could only recover his mortgage-money; and that he could more easily obtain by suing on the covenant for the payment of the money. But the covenants for title become valuable after a foreclosure, or after a sale under the power as they then stand, in lieu of the common covenants for title contained in purchase-deeds. They are,

MORTGAGE IN is to say), that the said power or authority hereinbefore

FEE.

-for right to appoint and convey.

-for quiet en joyment after default.

exercised by the said A. B., was well and effectually created, and that the same, at the sealing and delivery of these presents, is in full force and virtue, and in nowise suspended, extinguished, weakened, or become void: AND THAT he the said A. B. now hath in himself good right, full power, and lawful and absolute authority to direct, limit, and appoint, and also to grant, release, and confirm all the said hereditaments and premises hereinbefore appointed and released, or expressed and intended so to be, unto and to the use of the said C. D., his heirs and assigns, in manner aforesaid, according to the true intent and meaning of these presents: AND ALSO THAT, if default shall be made in payment of the said sum of £1,050, or any part thereof, contrary to the aforesaid proviso and covenant for the payment of the same, and the true intent and meaning of these presents, then and in such case it shall be lawful for the said C. D., his heirs and assigns, at any time or times thereafter, into and upon all and every the said hereditaments and premises hereinbefore appointed and released, or expressed and intended so to be, or any of them or any part thereof, to enter, and the same from thenceforth peaceably and quietly to have, hold, occupy, and enjoy, and receive and take the rents, issues, and profits thereof, to and for his or their own use and benefit, without any let, trouble, interruption, or disturbance whatsoever, of, from, or by the said A. B., his heirs or assigns, or any other person or persons whomsoever, any estate, right, title, or interest, having, or lawfully or equitably claiming, or to have, or lawfully or equitably claim, in or to the

indeed, more valuable than the common covenants, because they are absolute instead of being restricted; see supra, p. 201, n. (q); and as it has been considered, that the mortgagee after foreclosing, or a purchaser under a power of sale, ought not to have the benefit of absolute covenants, it has been proposed to insert in mortgages two sets of covenants, one absolute, for mortgage purposes, the other restricted, to take effect after foreclosure or sale. But, as this would much increase the length and expense of mortgage-deeds, it is probable that mortgagors will continue to prefer the existing practice.

MORTGAGE IN

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free from in

cumbrances;

ther assurance.

said hereditaments and premises, or any of them, or any part or parts thereof: AND THAT free and clear, and freely and clearly and absolutely acquitted, exonerated, and discharged, or otherwise, by the said A. B., his heirs, executors, administrators, or assigns, saved, defended, kept harmless and indemnified, of, from, and against all and all manner of former and other estates, titles, troubles, charges, and incumbrances whatsoever, other than the said several annuities of £4, £2, and £1, so far as the same are charged thereon: AND MOREOVER, that he the said A. B. and his and for furheirs, and all and every other persons and person whomsoever, having, or lawfully or equitably claiming, or who shall or may have, or lawfully or equitably claim, any estate, right, title, or interest, (other than in respect of the said annuities, or some of them), of, in, or to the said hereditaments and premises hereinbefore appointed and released, or expressed and intended so to be, or any of them, or any part or parts thereof, shall and will from time to time and at all times hereafter (m), upon the request of the said C. D., his heirs or assigns, but at the costs and charges of the said A. B., his heirs, executors, or administrators, make, do, and execute, or cause and procure to be made, done, and executed, all and every such further and other lawful acts, deeds, matters, things, and assurances

(m) The ancient shape of this covenant was, "And moreover that, if default shall be made in payment of the aforesaid sum of £- -, or of any part thereof, contrary to the aforesaid proviso and covenant for payment of the same, and the true intent and meaning of these presents, then and in such case, he the said [mortgagor] &c., (as in the text), at all times thereafter, &c.," proceeding as in the text, with the omission of the words near the end, "in manner aforesaid, according to the true intent and meaning of these presents." But this form was objectionable, because it precluded the mortgagee from availing himself of the covenant till default had been made, although it might well happen that some act for further assurance might require to be done before default. Of course the mortgagor cannot, under the covenant for further assurance, be required to release his equity of redemption; (Atkins v. Uton, 1 Lord Raym. 36, Comb. 318); aithough it may deserve consideration whether he might not be compelled, as an act of further assurance, to confirm a foreclosure or a sale under the power.

Covenant for further assur

ance.

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Proviso for quiet enjoyment by the mortgagor until

default.

MORTGAGE IN in the law whatsoever, for the further, better, more perfectly and absolutely appointing, granting, conveying, and assuring all the said hereditaments and premises hereinbefore appointed and released, or expressed and intended so to be, unto and to the use of the said C. D., his heirs and assigns, in manner aforesaid, according to the true intent and meaning of these presents, as by the said C. D., his heirs or assigns, or his or their counsel in the law, shall be reasonably devised or advised and required: PROVIDED ALSO, 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 nevertheless further is, that it shall be lawful for the said A. B., his heirs and assigns, peaceably and quietly to have, hold, occupy, possess, and enjoy all the said hereditaments and premises hereinbefore appointed and released, or expressed and intended so to be, and to receive and take the rents, issues, and profits thereof to and for his and their own use, until default shall be made in payment of the said sum of £1,050, or some part thereof, contrary to the aforesaid proviso and covenant for payment of the same, and the true intent and meaning of these presents, without any let, suit, trouble, interruption, or disturbance whatsoever, of, from, or by the said C. D., his heirs or assigns, or any other person or persons whomsoever, lawfully or equitably claiming, or to claim, by, from, or under him, them, or any of them (n): AND IT IS HEREBY further provided and declared, that if default shall be made in payment of the said sum of £1,000, or the interest thereon, or any part thereof respectively, at the times hereinbefore appointed for the payment of the same respectively, it shall be lawful for the said C. D., his executors, administrators, or assigns, at any time or times after such default shall have been so made, without any further consent on the

Power of sale.

Proviso for quiet enjoy

ment until default.

(n) The proviso for quiet enjoyment until default, coupled with the proviso for redemption, operates as a demise by the mortgagee to the mortgagor for the term given for payment. (Powseley v. Blackman, Cro. Jac. 659; 5 B. & Ald. 605, n. (a); Wilkinson v. Hall, 3 Bing. N. C.

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part of the said A. B., his heirs or assigns, to make sale (0) MORTGAGE IN and dispose of the said messuages, buildings, and other hereditaments and premises, hereinbefore appointed and released, or expressed and intended so to be, or any part or parts thereof, either together or in parcels, and either by public auction or private contract, with full power upon any such sale or sales to make any stipulations as to title or otherwise which he or they shall deem necessary, and also with full power to buy in the said premises, or any part or parts thereof, at any sale or sales by public auction, or to rescind any contract or contracts for the sale of the same premises, or any part or parts thereof, and to re-sell the premises which shall have been so bought in, or as to which any contract or contracts for sale shall have been rescinded as aforesaid, without being responsible for any loss which may be occasioned thereby; and that for the purposes aforesaid, or any of them, it shall be lawful for the said C. D., his executors, administrators, or assigns, to make and execute, or cause to be made and executed, all such agreements, deeds, conveyances, and assurances, as he the said C. D., his executors, administrators, or assigns, shall think fit: AND IT IS HEREBY also agreed and declared On sale by the that upon any sale or sales which shall be made under the power of sale, herein before contained, by the executors or administrators of the said C. D., or by any other person or

executors of the mortgagee,

the heirs to

join.

Validity of power of sale.

trustee for the mortgagor.

(0) As to the validity of a power of sale in a mortgage, see supra, p. 245, n. (a); and as to the shape of the power of sale, and the special authorities given by it, see supra, p. 290, notes (a) and (b); p. 291, n. (d); p. 95, n. (a); and see further, as to powers of sale in mortgages, the note at the end of this precedent. A mortgagee with a power of sale is, (sub- Mortgagee a ject to the payment of his mortgage debt), like any other mortgagee, a trustee for the mortgagor. Thus, he cannot purchase at a sale under the power. (Downes v. Grazebrook, 3 Mer. 200; Ex parte Francis, 1 Dea. & Chit. 274). If a mortgagor become bankrupt, and a mortgagee with a power of sale wish to bid at the sale, he must waive his power, and allow the estate to be sold in the usual way; supra, p. 417. (Ex parte Davis, 1 Mon. & Ayr. 82; 3 Dea. & Chit. 504). If, however, the mortgagee have purchased bonà fide, though without leave, the purchase may be confirmed. (Ex parte Ashley, 1 Mon. & Ayr. 82; S. C. 3 Dea. & Chit. 510; Ex parte Pedder, 1 Mon. & Ayr. 327; 3 Dea. & Chit. 622).