equal half-yearly payments, on the the day of and day of in every year, and the first halfyearly payment thereof to be made on the day of TO PERSONS JOINT AC- Proviso for determining the tenancy, on defaultin payment of mortgagemoney or in now next ensuing; And in testimony of such attornment, he the said A. B. hath this day paid to the said C. D., E. F., and G. H., the sum of one shilling each: PROVIDED ALWAYS, and it is hereby agreed and declared between and by the parties to these presents, that if the said A. B., his heirs, executors, administrators, or assigns, shall make default in payment of the said principal sum of £1,000, or the interest thereon, or any part thereof respec- terest, tively, on or at the days or times and in manner in the proviso and covenant hereinbefore contained, mentioned and appointed for payment thereof respectively, then, or at any time thereafter, it shall be lawful for the said C. D., E. F., and G. H., their heirs and assigns, upon giving fourteen days' previous notice upon the premises, of his or their intention so to do, to enter in and upon, and take possession of the said messuage, hereditaments, and premises whereof the said A. B. hath attorned tenant as aforesaid, and to determine and put an end to the tenancy created by the aforesaid attornment (g). IN WITNESS &c. (g) By the old feudal law, the tenant's consent was necessary to an alienation of the seignory or reversion, and the expression of this consent was called an attornment. Till attornment the relation of lord and tenant did not subsist between the alienee of the seignory or reversion, and the tenant, and consequently the new lord could not distrain for rent or services. The necessity of attornment, however, was in a measure done away with by the statutes of uses and wills, and was almost entirely put an end to by the statutes of the 4th of Anne, c. 16, and 11 Geo. 2, c. 19. (See Co. Lit. 309. a. n. 1). Almost the only case in which an attornment is made in modern practice, is that of a mortgagor being in the actual possession of the lands mortgaged; for, as it does not seem altogether clear what is the relation subsisting between such a mortgagor and his mortgagee, it is not unusual to insert the form in the text, so as to enable the mortgagee to treat the mortgagor as his tenant, and to distrain for rent. For further information as to the nature of the relations subsisting between the mortgagor and mortgagee, see Coote on Mortgages, Book III. ch. 1, 2nd ed.; 2 Prest. Conv. 303. (Hitchman v. Walton, 4 Mees. & Wels. 409; and ante, Vol. 1. Art. MORTGAGES). Of course, if a receiver Attornment by mortgagor in possession, to the mortgagee. TO PERSONS LENDING ON A JOINT AC COUNT. Leases by mortgagor and mortgagee. Power of leasing. be appointed the attornment must be to him, and if he be appointed by a separate deed the attornment should be made by that deed. The following or some similar words should also be inserted immediately before, "And in testimony": : "which said yearly rent is to be received and applied by the said [receiver], upon and for the trusts, intents, and purposes hereinbefore mentioned and contained." With regard to the relation and rights of the mortgagee and mortgagor towards tenants, see Coote on Mortgages, Book III. ch. 4, 2nd ed. (Rogers v. Humphreys, 4 Ad. & Ell. 299; Waddilove v. Barnet, 2 Bing. N. C. 538; Ex parte Living 1 Dea. 1; Evans v. Elliott, 1 Per. & Dav. 256; and ante, Vol. 1, Art. MORTGAGES. Neither the mortgagor nor the mortgagee alone can make a lease which will be binding on the other. (Keech v. Hall, 1 Doug. 22; Hungerford v. Clay, 9 Mod. 1; Coote on Mortgages, 2nd ed. pp. 406, 410, 442). And as the mortgagor is often desirous to be able to grant leases independently of the mortgagee, so as not to make public that the property is mortgaged, a power of leasing is occasionally given to the mortgagor by the mortgage deed. But this practice is not to be recommended, for the covenants by the lessee must then be entered into with the mortgagor, and will, consequently, be mere covenants in gross, and not available for the mortgagee and his assigns. (Webb v. Russell, 3 T. R. 323; Stokes v. Russell, Id. 378; Russell v. Stokes, 1 H. Bl. 362; Whitton v. Peacock, 2 Bing. N. C. 411; S. C. 3 My. & Ke. 325). If a power of leasing be given to the mortgagor, it should provide that counterparts of the leases shall be executed by the lessees, and shall be deposited with the mortgagee, so that he may be informed of the terms of the tenancy. Sometimes a power of leasing is given to a mortgagee to be exercised when in possession, but it is so rare a thing for a mortgagee to take possession instead of selling or foreclosing, that it has not been deemed necessary to give any form of such a power. The following form is of a power given to the mortgagor of leasing for twenty-one years, and similar powers of granting building, or mining, or other leases, may be easily framed on the same plan. "Provided also, and it is hereby agreed and declared between and by the parties to these presents, that it shall be lawful for the said [mortgagor], his heirs and assigns, from time to time and at all times hereafter, during the continuance of this present security, by any indenture or indentures to be sealed and delivered by him or them in the presence of, and attested by one or more credible witness or witnesses, to demise or lease, or limit or appoint by way of demise or lease, all or any part or parts of the said hereditaments and premises, to any person or persons, for any term or number of years absolute, not exceeding twentyone years, to take effect in possession and not in reversion or by way of future interest, so as there shall be reserved on every such demise or lease, or limitation or appointment, the best or most improved yearly rent or rents to be incident to the immediate reversion of the hereditaments so to be demised or leased, or limited or appointed, that can or may be reasonably had or gotten for the same, without taking any fine, premium, or foregift, or anything in the nature of a fine, premium, or foregift, for the making thereof, and so as there be contained in every such demise or lease, or limitation or appointment, a condition of re-entry for non-payment of the rent or rents thereby to be respectively reserved, and so as the lessee or lessees, appointee or appointees, do execute a counterpart thereof respectively, and do thereby covenant for the payment of the rent or rents thereby to be respectively reserved, and be not, by any clause or words therein to be contained, made dispunishable for committing waste, and so that every such counterpart be delivered to the said [mortgagee] within days after the execution thereof." TO PERSONS JOINT AC- MORTGAGE FOR A TIME CERTAIN. Parties. ation of power. LV. MORTGAGE in Fee by APPOINTMENT, (SHORT THIS INDENTURE, made &c. BETWeen A. B., of &c., [mortgagor], of the one part; and C. D., of &c., Recital of cre- [mortgagee], of the other part: WHEREAS, by indentures of lease and release, bearing date respectively the and days of the release being made or expressed to be made between [parties], the messuages and hereditaments hereinafter particularly mentioned, and intended to be hereby appointed, with their appurtenances, were conveyed and assured to the use of such person or persons, for such estate or estates, as the said A. B., by any deed or deeds sealed and delivered by him, in the presence of, and to be attested by, two or more credible witnesses, should direct, limit, or appoint, and in default thereof, to Remarks on the language of the Precedent. (a) It will be observed that this Precedent differs most materially in its language from the other forms in this collection, great care having been taken to cut off all redundancy of expression. But as the draft from which it was taken was settled by a most eminent conveyancer, and no really useful form or expression is omitted, the precedent may be relied on for practice with perfect safety. The form of the proviso for redemption, and of the covenants for title, may be recommended to attention. The proviso only names one day for payment of the principal and interest, leaving it to the covenant to provide for the half-yearly payment of interest if the principal be not paid on the day appointed. With regard to the propriety of shortening the covenants for title, see supra, p. 204. n. (u). The provisoes as to the duration of the security are of the common length. MORTGAGE FOR A TIME Witnesseth. the use of, or in trust for, the said A. B., his heirs and assigns, as therein mentioned: NOW THIS INDENTURE WITNESSETH, that, in consideration of the sum of £ to the said A. B. paid by the said C. D. at Consideration. the execution of these presents, (the receipt of which said Receipt. sum of £ the said A. B. doth hereby acknowledge), Proviso for redemption. and in exercise of the aforesaid power, and of every or any Appointment. other power enabling him in this behalf, the said A. B. doth by these presents direct, limit, and appoint, that ALL THAT, &c. [parcels—general words], shall henceforth go Parcels. and remain to the use of the said C. D., his heirs and assigns, subject to the proviso hereinafter contained (that is to say), that if the said A. B., his heirs, executors, administrators, or assigns, shall pay unto the said C. D., his executors, administrators, or assigns, the sum of £ with interest for the same, at the rate of £ for £100 for a year, on the day of (b) now next ensuing, without any deduction whatsoever for any present or future taxes or impositions, or any other matter, cause, or thing whatsoever, 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 of the said A. B., his heirs or assigns, reconvey the said messuages, hereditaments, and premises unto the said A. B., his heirs and assigns: AND THE SAID A. B. doth hereby for himself, his executors, and administrators, covenant with the said C. D., his executors and administrators, that he the said A. B., his heirs, executors, or administrators, shall and will pay unto the said C. D., his executors, administrators, or assigns, the said sum of £and the interest thereon, on the day hereinbefore appointed for payment thereof, without any deduction or abatement whatsoever; and, in case the said sum of £ shall not be paid to the said C. D., his executors, administrators, or assigns, on the said next, shall and will day of Covenant for payment of mortgage money and interest, (b) It will generally be convenient to make the day of redemption the Day of redemp tion. day of the expiration of six calendar months from the date of the mortgage; as this course will best agree with the intended half-yearly pay ments of interest. |