Page images





paid or discharged, and that in the next place such monies Of A MILL shall be applied in or towards satisfaction of all and singular the monies which for the time being shall be due or owing Partners to on the security of these presents, and that the surplus (if “ BANK. any), of the monies to arise from such sale or sales as aforesaid shall be paid unto the said A. B. and C. D., their ex. ecutors, administrators, or assigns, for their proper use and benefit (i): PROVIDED ALWAYS, and it is hereby agreed Indemnity and declared, that the said E. F., G. H., or I. K., or any of them, their or any of their executors or administrators, shall not be answerable or accountable for any involuntary losses which may happen in or about the execution of the aforesaid power and trusts, or any of them; PROVIDED Proviso that

the power of Also, and it is hereby agreed and declared, that the aforesaid power of sale, or anything herein contained, shall not affect the right

to foreclose. in anywise prejudice or affect the right of the said E. F., G. H., and I. K., their 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 : AND IT IS HEREBY agreed and declared that these General declarpresents are intended to be a security for the balance, for nature of the the time being, on the account-current of the firm of B. & D., security. (whether the same firm shall consist of the present partners or of one of them, or of them or either of them together with any other person or persons, or of any other persons or person only), due or owing to the said — bank of - , of whatsoever partners or shareholders the Company carrying on the business of the said bank shall from time to time consist(k): AND IT IS HEREBY declared that these Declaration as

ation as to the

to the amount

(*) The mortgaged estate being partnership property, the surplus monies are treated as personalty, supra, note (e).

(k) If a security be given to partners generally, the retirement or death A security of any of the partners, or the introduction of a new partner, will prevent given

to a firm

does not extend the security from extending to subsequent dealings. (Wright v. Russell, to dealings 3 Wils. 530; S. C. 2 W. Bl. 934; Barker v. Parker, 1 T. R. 287; Myers after a change v. Edge, 7 T. R. 254; Dance v. Girdler, 1 N. R. 34; Strange v. Lee, in the pas 3 East, 484). And where the security to partners was for the re-payment “ to them of any money advanced by them, or any or either of them.” It



Of A Mill presents are intended to be a security for the balance to be

NERY BY due on the account-current aforesaid, and that, for the purPARTNERS TO A JOINT STOCK

BANK. was held, that the security did not extend to monies advanced by the of the money survivors after the death of one. For the money being to be repaid to all, to be ultimately

showed, that, by the advances made by any or either of them, must be recoverable.

meant advances so made on behalf of all. (Weston v. Barton, 4 Taunt. 673; overruling Barclay v. Lucas, 1 T. R. 291, n.).

And where the security was for the re-payment to A., B., and C., (partners), or the survivors or survivor of them, or the executors, administrators, or assigns of such survivor, of money becoming due to A., B., and C., or the survivors or survivor of them, or the executors, administrators, or assigns of such survivor, and C. died; and his executors, and A. and B., by virtue of the articles of partnership, carried on the business, and made further advances, it was beld, that the security did not extend to those advances. (Pemberton v. Oakes, 4 Russ. 154; see, also, Jones v. Maund, 3 You. & Col. 347; Ex parte M'Gae, 19 Ves. 607; 2 Rose, 376). And a deposit of deeds with A., B., and C., bankers, as a security for the balance of any sums which “ you may advance,” will not cover advances made by the bank after a change of partners. (Ex parte Kensington, 2 Ves. & Bea. 79).

It has been doubted whether the introduction into a firm of a nominal partner (i, e. a partner merely receiving a salary, and not sharing in the profit or loss), would prevent a security given to the old firm from extending to subsequent transactions (Ex parte Watson, 19 Ves. 459); but it does not appear that the question has been decided. In a case where a security was given to certain persons and their successors, as governors of a certain society which was afterwards incorporated, it was held that the security was not available. (Dance v. Girdler, 1 N. R. 94). But where a bond was given to the trustees of an Insurance Company as a security for a clerk, it was held, that the bond remained in force notwithstanding changes in the members of the Company. (Metcalfe

v. Bruin, 12 East, 400; S. C. 2 Camp. 422. But a security There is no doubt that a security may be so worded as to extend to may be so ex advances and transactions made or entered into after a change in the firm tended.

or Company. (3 East, 420 ; Metcalfe v. Bruin, ubi supra). And where title-deeds were deposited, with a letter addressed to the firm stating that they were so deposited “as a security for the payment of the running balance, which for the time being may be accruing from [the depositor] to you, or any of you alone, or with any other partner or partners," it was held, that the estate to which the title-deeds related was a security for advances made by the firm after one of the partners retired. (Ex

parte Lloyd, 3 Dea. 305. The same rules The converse of the principle explained in the preceding observations apply to secu- is likewise true; for a security given by partners will not extend to


poses of the act imposing a duty ad valorem on such mort- OF A MILL gage securities, the total amount of the money to be ultimately recoverable hereupon shall not exceed £ IN PARTNERS TO WITNESS &c. (1).



transactions entered into after a change in the firm. Thus, a bond rities by partwhich was given to secure such sums as should be advanced to meet bills ners. drawn by A. & B. (partners), or either of them, was held not to extend to bills drawn by A. after the death of B. (Simson v. Cooke, 1 Bing. 452). But in this case, likewise, the security may, by the use of apt words, be extended to transactions entered into after a change in the partners. (1 Bing. 460, 461; Simpson v. Ingham, 2 B. & C. 65; S. C. 2 Dowl. & Ry. 249).

There is an important distinction in this matter, between securities under seal and securities not under seal-because the effect of the former cannot be enlarged by parol evidence. (Ex parte Hooper, 19 Ves. 479; S. C. 2 Rose, 328, and 1 Mer. 7). Whereas securities not under seal may be explained and varied by extrinsic evidence. Hence, securities not under seal, which would not originally cover advances made after a change of partners, may be shewn to be intended to have that effect. (Ex parte Kensington, 2 Vea. & Bea. 79; Ex parte Marsh, 2 Rose, 239; Ex parte Lloyd, 1 Glyn & Jam. 389; Ex parte Alexander, Ibid. 409. But even in the case of an instrument under seal, given as a security to a firm by the name of the firm, parol evidence was admitted to shew who composed the firm. (Moller v. Lambert, 2 Camp. 548).

(1) As to the use and effect of this proviso, see the Stamp Act, 55 Geo. 3, c. 184, Art. MORTGAGE. If the proviso be omitted, a £25 stamp would be necessary, as the mortgage would be for an unlimited amount.




Lands in SETTLEMENT subject to a Power of
APPOINTMENT, the Money being advanced in
DISTINCT Sums by two Sets of Mortgagees (a).
Power of Sale. Proviso as to the Order of
LIABILITY between the Mortgagors and the
Estates. Trusts of the Money arising from
Sale of the SETTLED Estates.


THIS INDENTURE, made &c. BETWEEN A. B., of &c., [one of the mortgagors], of the first part; C. D., of

Construction (a) If money is to be lent on mortgage in distinct sums, by two difof mortgage to ferent mortgagees or sets of mortgagees, who are to be paid pari passu, different mort

the object may be effected by conveying the land to all the mortgagees, gagees.

with a proviso for redemption on payment of the mortgage debts and interest, to the several owners, the mortgagor covenanting separately with the different mortgagees for payment of their respective debts and interest. This is the method adopted in the precedent in the text, and it has no other inconvenience than that of obliging each set of mortgagees to obtain the concurrence of the other before they can deal with the land. But this method is not very practicable where the different mortgagees are numerous, on account of the great length to which the mortgage-deed would extend, and on account of the inconvenience which might ensue from vesting the land in a great number of persons. If, therefore, several persons are to contribute to a sum to be lent on mortgage, it is usual to make the mortgage to trustees for the entire sum, the interests of the several lenders being ascertained, either by a separate deed, or on the face of the mortgage. It is more convenient to the mortgagor, that the mortgage-deed should deal with the trustees alone, as lending a sum of money belonging to them on a joint account; (supra, p. 480); but such a course cannot be deemed prudent for the lenders, unless the trustees are persons in whom they may place perfect confidence. For, if the trustees have power to discharge the land, it is clear that the lenders have little else to look to than the personal security


&c., [the other mortgagor), of the second part; E. F. and settleD LAND G. H., &c., [.first set of mortgagees], of the third part; “Of MortI. K. and L. M., of &c., [second set of mortgagees], of the GAGEES. fourth part; and X. and Y., (trustees], of the fifth part: WHEREAS, by an indenture of appointment, bearing date Recital of set

nd mode or ovnressed to tlement of part

nd made or expressed of the lands to be made between (parties], (being a settlement executed be mortgaged. previously to and in consideration of the marriage then intended, and shortly afterwards had and solemnized between the said C. D., and the said E. D., his wife), the manors, messuages, farms, lands, and other hereditaments, firstly hereinafter particularly mentioned, and intended to be hereby appointed, were appointed and limited from and after the solemnization of the said then intended marriage, to the use of such person and persons, for such estate and estates, interest and interests, upon such trusts, and to and for such ends, intents, and purposes, and in such sort, manner, and form, in all respects, as the said A. B. and C. D. during their joint lives, or as the survivor of them during his life, by any deed or deeds, instrument or instruments in writing, to be by them or him sealed and delivered in the presence of two or more credible witnesses should direct, limit, and appoint, and in default of and until and subject to such direction, limitation, or appointment to the uses and upon the trusts therein mentioned: AND WHEREAS —of one of the the said A. B. is seised or entitled for an estate of inherit- m ance in fee-simple in possession of or to the castle, park, fee of the other

lands, subject messuages, lands, and other hereditaments, secondly herein- to ce after particularly mentioned, and intended to be hereby gages. granted and released, subject to a mortgage for £10,000, which, under and by virtue of indentures of lease and release, bearing date respectively the — and — days

101 A

[ocr errors]
[ocr errors]

being seised in


of the trustees. It appears to be settled, that when a mortgage of this kind is made, a person entitled to a portion of the mortgage-money cannot sustain a suit for foreclosure without bringing the persons entitled to the remainder of the money before the Court. (Lowe v. Morgan, 1 Bro. C. C. 368; Palmer v. Earl of Carlisle, 1 Sim. & Stu. 423). The case of Montgomery v. Marquis of Bath, 3 Ves. 560; must be taken to be overruled.

« PreviousContinue »