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persons who may not be seised of the legal estate in the premises to be sold, the heirs of the said C. D., or any other person or persons in whom the legal estate of the same premises, or any part thereof, shall be vested, shall make such conveyances and assurances of the same, for the purpose of
carrying the sale thereof into effect, as the person or persons Power of sale by whom the sale shall be made shall direct: PROVIDED ALSO, not to be ex
re and it is hereby agreed and declared, that the said C. D., ercised till certain events his executors, administrators, or assigns, will not and shall happen.
not execute the power of sale hereinbefore contained, unless and until he or they shall have previously given a notice in writing to the said A. B., his heirs, executors, administrators, or assigns, to pay off the monies which for the time being shall be due on the security of these presents, or left a notice in writing to that effect at the office of — , in
- , and default shall have been made in payment of such monies, or some part thereof, for the space of six calendar months, to be computed from the time of giving or leaving such notice, or unless and until some half-yearly payment of interest which shall become due on the security of these presents, or a part of some such half-yearly payment, shall have become in arrear for the space of three calendar
months after the day on which the same shall become due: Purchasers not PROVIDED ALSO, and it is hereby agreed and declared, that to be bound to
upon any sale purporting to be made in pursuance of the events have aforesaid power in that behalf, the purchaser or purchasers happened.
thereat shall not be bound to see or inquire whether either of the cases mentioned in the clause or provision lastly hereinbefore contained has happened, or whether any money remains due on the security of these presents or otherwise, or as to the propriety or regularity of such sale, and notwithstanding any impropriety or irregularity whatsoever in any such sale, the same shall, as far as regards the safety and protection of the purchaser or purchasers thereat, be deemed and taken to be within the aforesaid power in that behalf, and be valid and effectual accordingly, and the remedy of the said A. B., his heirs or assigns, in respect of
any breach of the clause or provision lastly hereinbefore Mortgagee's re- contained shall be in damages only: AND IT IS HEREBY
see that the
also agreed and declared, that upon any such sale as aforesaid, MORTGAGE IN the receipt or receipts, in writing, of the said C. D., his executors, administrators, or assigns, for the purchase-money ni
ey purchase of the premises to be sold, shall be an effectual discharge money to be
effectual. or effectual discharges to the purchaser or purchasers for the money therein respectively expressed to be received, and that such purchaser or purchasers, after payment of his or their purchase-money, shall not be concerned to see to the application of such money, or be answerable for any loss, mis-application, or non-application thereof: AND IT IS Trusts of the HEREBY further agreed and declared that the said C. D., pone
Do, money his executors, administrators, and assigns, shall hold all and singular the monies which shall arise from any sale which shall be made in pursuance of the aforesaid power in that behalf upon the trusts following, (that is to say), upon trust in the first place, by, with, or out of the same monies to reimburse himself or themselves, or pay or discharge all the costs and expenses attending such sale or sales, or otherwise to be incurred in or about the exercise of the said power of sale, or in anywise relating thereto, and in the next place upon trust to apply such monies in or towards satisfaction of all and singular the monies which for the time being shall be due on the security of these presents, and then upon trust to pay the surplus (if any) of the said monies unto the said A. B., his heirs (p) or assigns, for his and their
(p) The purchase-money should always be made payable to the mort- Surplus to be gagor, his heirs or assigns, not to him, his executors, administrators, or deemed real es. assigns; for it is no part of the office of a mortgage to alter the character of the surplus, as between the heir and the personal representatives, which would be the effect of the supposed trust. (Van v. Barnett, 19 Ves. 102; Wright v. Rose, 2 Sim. & Stu. 323; see, too, Biggs v. Andrews, 5 Sim. 424). It is intended that the mortgagee shall pay himself his debt, and reconvey or pay over the surplus, be it land or money, to the person who has the right to redeem. It may be observed, that even if the ultimate trust be for the personal representatives, yet, that if the sale do not take place till after the death of the mortgagor, the surplus will go to the heir. (Wright v. Rose, ubi supra). Supposing the heir to die before the surplus is actually paid him, a question may arise between his real and personal representatives, but it is not the business of the mortgage to regulate equities of that nature. The remarks in
MORTGAGE IN proper use and benefit: AND IT IS HEREBY also agreed and
declared that the aforesaid power of sale shall and may be may be exercised by any person or persons, who for the time being exercised by any one entitled shall be entitled to give a discharge for the monies which
chase- for the time being shall be due on the security of these money. Mortgagee's
presents: PROVIDED ALWAYS, and it is hereby agreed and indemnity declared, that the said C. D., his executors, administrators,
or assigns, shall not be answerable or accountable for any involuntary losses which may happen in or about the exer
cise or execution of the aforesaid power or trusts, or any of Power not to them : PROVIDED Also, and it is hereby lastly agreed and prejudice the right of fore.
declared, that the aforesaid power of sale or any thing closure. herein contained, shall not in anywise prejudice or affect
the right of the said C. D., his heirs, executors, administrators, or assigns, to foreclose the equity of redemption of the premises aforesaid, or of the unsold part thereof for the time being (9). IN WITNESS &c.
another part of this work on the cases of resulting trusts for the heir, in land directed by will to be converted, will perhaps be found applicable to the present question. (See Jessop v. Watson, 1 My. & Ke. 665).
If the ultimate trust were, as through ignorance or carelessness it sometimes is, made for the mortgagor, his heirs, executors, administrators, or assigns, it is apprehended that the heir would be entitled to the surplus; but, perhaps, the doctrine laid down in Wright v. Rose, ubi supra, would be followed.
Utility of power of sale.
(9) A power or trust for sale in default of payment of the debt is now made a part of every mortgage, unless the security be so ample, and the mortgagor in such circumstances, as to preclude all risk of any difficulty in obtaining re-payment. For it is no hardship to the mortgagor, if he cannot pay the debt, to have his estate sold, and the surplus produce handed over to him; and the mortgagee, if not armed with this remedy, is driven to the tedious and expensive resort of a suit for foreclosure. By the power of sale, too, the mortgagee gets money, whereas by a foreclosure he gets the land, which he seldom desires.
There are two ways of arming the mortgagee with a power of selling the estate ; one (that in the text) by which the estate is conveyed to him on mortgage in the usual way, and the power of sale is subsequently attached ; the other, that of a trust, that if the mortgagor pay the principal and interest at the times and in manner appointed, the mortgagee shall re-convey, and in default of such payment shall sell. The first form is much
Modes of conferring the power of sale.
to be preferred for many reasons; it is much more germane to the na- MORTGAGE IN ture and shape of a mortgage, and is much more easily handled on transfers and other subsequent dealings. No example of the second form will be found in the present collection, because it is seldom used, and the space intended to be employed will not admit of the introduction of any other precedents than those which are well approved. Both a power and trust for sale may be given to a third person, but it Power should
be given to is better that they should be reposed in the mortgagee, with such restric- mo tions as may prevent his doing needless injury to the mortgagor. (See himself. Anon. 6M add. 10), where the court restrained a trustee from selling when it would not have restrained the mortgagee himself.
A good mortgage power of sale should give the persons for the time On framing being entitled to the mortgage money, full discretion to make the sale in power of sale
in mortgages. such manner as they shall deem best. It should provide that the persons having the legal estate, if different from those entitled to the money, shall convey the estate as the persons entitled to the money shall direct. It should stipulate, as a matter of personal agreement between the mortgagor and mortgagee, that no sale shall be made until after due notice demanding payment of the principal, or until the interest shall be improperly in arrear, taking care, however, to protect purchasers from being bound to see to the propriety or regularity of the sale; and, lastly, should give to the mortgagee aud his personal representatives power to give effectual receipts for the purchase-monies, and should declare in clear language the trusts of these monies when received. The power in the text (from which the other powers in these precedents have been adapted in actual practice) was framed by an eminent conveyancer of the present day, and appears to combine in itself all the requisites for an effective power. The three last clauses are added, perhaps rather as a matter of precaution than as being essential.
The power should always in the first instance be given to the mortgagee, his executors, administrators, and assigns; not to the mortgagee, his heirs and assigns, for the heirs are in no wise interested in the money, and ought only to be the instruments of the personal representatives for effectuating a sale when made. The heirs, too, are often infants, which would render a sale impracticable. The word “assigns” should never be omitted, for if it be absent from the power of sale, even though it be found in the power to give receipts, a transferee of the mortgage could not exercise the power. (Bradford v. Belfield, 2 Sim. 264). Under a power to the mortgagor, his heirs or assigns, a devisee of the legal estate might undoubtedly exercise the power, though whether he could do so under a power to the mortgagor and his heirs is more doubtful. (See Bradford v. Belfield, ubi supra; Roe d. Bamford v. Hayley, 12 East, 464). But the surest way is to give the power to the personal representatives, and to declare that any person entitled to the mortgage-money may exercise the power of sale. As to the mode of conferring powers of sale where the mortgagees are more than one in number, see the next Precedent,
TO PERSONS LENDING ON A JOINT ACCOUNT.
MORTGAGE in Fee to thrEE Persons who
advance the Money on a Joint Account (a). Power of SALE. ATTORNMENT by Mortgagor.
THIS INDENTURE, made &c. Between A. B., of &c. [mortgagor], of the one part, and C. D., of &c., E. F.
As to the su
le sur vivorship in money lent by joint mort. gagees.
(a) If two persons jointly advance money on mortgage, and one of them die, the debt will at law belong to the survivor; but in equity, the money advanced by the deceased lender will belong to his representatives. (3 Atk. 734 ; 2 Ves. sen. 258; 3 Ves. 631). The case of Petty v. Styward, (Rep. in Chan. 57; 1 Eq. Ca. Abr. 290), which is usually quoted as an authority for this doctrine, does not indeed appear to bear it out, for there there was an express declaration of trust between the mortgagees; but, independently of this case, the doctrine is perfectly established.
When money is advanced by trustees, as the money belongs to them on a joint account, the rule of equity inferring a tenancy in common does not operate; but, as it is extremely improper and inexpedient to shew on the mortgage-deed that the money is trust money, so as to incumber the title of the estate with the deeds concerning the trust, the practice is, that the trustees shall lend the money as if it were absolutely their own, but with a declaration that it belongs to them on a joint account, so as to negative the equitable inference that the money belongs to the lenders as tenants in common. It was formerly usual to accomplish this object by a special proviso, (ante, Vol. 2, pp. 603, 606); but it is at present considered sufficient to state, that the monies lent belong to the lenders on a joint account. This will enable the survivors to give a discharge without the concurrence of the personal representatives of those who have died. The proviso and covenant for payment should make the money payable to the persons who are actually to give a receipt for it, i. e, to the lenders, or the survivors or survivor, or the executors or administrators of the survivor. The expression is usually, as a matter of precaution, repeated in the witnessing part of the deed. Some practitioners say, “ on a joint account in equity as well as at law;" but the addition is needless. Of course, the actual interests in the money