Page images
PDF
EPUB

TO TWO SETS

GAGEES.

and the true intent of them and of these presents never- SETTLED LAND theless is, that it shall be lawful for the said A. B., his "OF MORT heirs and assigns, or other the person or persons for the time being entitled to the equity of redemption of the said mortgagor,

until default. premises respectively, peaceably and quietly to have, hold, occupy, and enjoy all the said manors, castle, park, hereditaments, and premises, hereinbefore respectively appointed and granted and released, or expressed and intended so to be, and receive and take the rents, issues, and profits thereof to his and their own use, until default shall be made in payment of the said sums of £46,800 and £15,600, or one of them, or some part thereof respectively, contrary to the aforesaid proviso and covenants for payment of the same respectively, and the true intent and meaning of these presents without any let, suit, trouble, interruption, or disturbance whatsoever, of, from, or by the said E. F., G. H., I. K., and L. M., or any of them, their or any of their heirs or assigns, or any other person or persons whomsoever, lawfully claiming or to claim by, from, or under them or any of them : AND IT IS HEREBY Power of sale. agreed and declared between and by the parties to these presents, that if default shall be made in payment of the said principal sums of £45,000 and £15,000 respectively, or the interest thereon respectively, or any part of the said principal sums and interest respectively, at the times hereinbefore appointed for the payment of the same respectively, it shall be lawful for the said E. F. and G. H., or the survivor of them, or the executors or administrators of such survivor, their or his assigns, or for the said I. K. and L. M., or the survivor of them, or the executors or administrators of such survivor, their or his assigns, (as the case may be) (b), at any time or times after such default shall

(6) It is extremely difficult in mortgages of this kind to frame a convenient and efficacious power of sale. The power is sometimes given to all the mortgagees, and the survivors and survivor of them, and the heirs of such survivor, their or his assigns, so as to make the power run with the land; but it may occasion inconvenience to give the power to the heirs of the survivor, since those heirs may be infants or may be unknown.

TO TWO SETS

GAGEES.

SETTLED LAND have been so made, (proceed as in common power, supra, OF MORT- p. 486, inserting in a parenthesis, “and as to the said pre

mises comprised in the said subsisting mortgages, either discharged therefrom or subject thereto, or any of them”], and that for the purposes aforesaid, or any of them, it shall be lawful for the said E. F. and G. H., or the survivor of them, or the executors or administrators of such survivor, their or his assigns, or for the said I. K. and L. M., or the survivor of them, or the executors or administrators of such survivor, their or his assigns, (as the case may be), to make and execute, or cause to be made and executed all such

agreements, deeds, conveyances, and assurances, as they or Persons having he shall think fit: AND IT IS HEREBY AGREED and declared, the legal estate

that upon any sale or sales which shall be made under the directed by the said power of sale, the said E. F., G. H., I. K., and L. M., donees of the power.

or the survivors or survivor of them, or the heirs of such survivor, their or his assigns, or any other person or persons in whom the legal estate of the same premises may 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 by whom the sale shall be made Power not to be shall direct: PROVIDED ALWAYS, and it is hereby agreed exercised till certain events and

and declared, that no person or persons shall execute the have happened. power of sale hereinbefore contained, unless they or he

shall have previously left at the office of — , in (c),

to con ve y as

And it is certainly desirable, that each set of mortgagees should have a power of sale independent of the other, and this is the aim of the form in the text. The language, however, of the precedent, does not seem to be so distinct as is desirable. The introduction of two separate powers of sale, each complete in itself, would be effective, but would so greatly increase the length of the deed that it could not be justified without evident necessity.

(c) The precedent departs from the usual form in not mentioning any person to whom the notice may be delivered. This happens from part of the mortgaged estates being in settlement, which would occasion some difficulty in pointing out the persons to whom the notice should be given. Sometimes the notice is directed to be addressed " to the persons or person for the time being entitled to the equity of redemption of the said premises."

TO TWO SETS
OF MORT-
GAGEES.

a notice in writing for the person or persons for the time settLED LAND being entitled to the equity of redemption of the said premises, to pay off the monies which for the time being shall be due on the security of these presents, 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 leaving such notice, or unless and until some half-yearly payment of interest, which shall become due on the security of these presents to the persons or person executing the said power of sale, 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 : PROVIDED ALSO, and it is Purchasers not hereby agreed and declared, that upon any sale purporting see that events

to be bound to to be made under the aforesaid power in that behalf, the have happened. purchaser or purchasers 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 as to the propriety or regularity of such sale, and notwithstanding any 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 to be valid and effectual accordingly, and the remedy of the said A. B., his heirs or assigns, or of the said C. D., or any other person or persons interested in the equity of redemption of the said premises, in respect of any breach of the clause or provision lastly hereinbefore contained, shall be in damages only: AND IT Receipts of IS HEREBY also agreed and declared, that, upon any such mortgagees to

be good dissale as aforesaid, the receipt or receipts in writing of the charges. said E. F. and G. H., or the survivor of them, or the executors or administrators of such survivor, their or his assigns, or of the said I. K. and L. M., or the survivor of them, or the executors or administrators of such survivor, their or his assigns, (as the case may be), for the purchasemoney of the premises to be sold, shall be an effectual discharge or effectual discharges to the purchaser or purchasers for the money therein respectively expressed to be received,

TO TWO SETS
OF MORT-
GAGEES.

SETTLED LAND and that such purchaser or purchasers, after payment of his op Mort- or their purchase-money, shall not be concerned to see to

the application of such money, or be answerable for any Trusts of pur- loss, mis-application, or non-application thereof: And It is chase-money.

HEREBY further agreed and declared, that the said E. F. and G. H., or the survivor of them, or the executors or administrators of such survivor, their or his assigns, and the said I. K. and L. M., or the survivor of them, or the executors or administrators of such survivor, their or his assigns, as the case may be, shall hold all and singular the monies which shall arise from any sale which shall be made as aforesaid upon the trusts following, (that is to say), upon trust in the first place, by, with, or out of the same monies to reimburse themselves or himself, 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, by and out of the monies which shall arise by sale or otherwise from the said castle, park, hereditaments, and premises hereinbefore granted and released, or intended so to be, to pay the said subsisting mortgages of £10,000, £12,000 and £5,000, or so much as shall remain due thereon respectively in case the same premises shall be sold discharged from such mortgages ; and upon trust in the next place, by and out of the monies to arise by any such sale or sales of the said manors, castle, park, messuages, farms, lands, hereditaments, and premises hereinbefore appointed, and granted and released respectively, or expressed and intended so to be, to pay, retain, or satisfy to the person or persons respectively entitled thereto, the said sums of £45,000 and £15,000, intended to be hereby secured, and the interest thereon respectively, or so much thereof respectively as shall remain due or owing, pari passu, and without preference or priority; and upon trust to render and pay the surplus (if any) of the said monies to arise by any such sale or sales of the said castle, park, messuages, lands, and other hereditaments hereinbefore granted and released, or intended so to be, unto the said A. B., his heirs or assigns, and to pay the surplus

TO TWO SETS
OF MORT-

er

gees not

(if any) of the said monies to arise by sale of the said settleD LAND manors, messuages, farms, lands, and other hereditaments hereby limited and appointed as aforesaid, unto the said X. GAGEES. and Y., or the survivor of them, or the executors or administrators of such survivor, to be by them or him held and applied upon the trusts and in manner hereinafter mentioned or referred to; AND IT IS HEREBY also agreed and Power of sale declared, that the aforesaid power of sale shall or may be

e cised by any exercised by any person or persons, who for the time being person capable shall be entitled to receive and give a discharge for any of ceipt for the

of giving a rethe monies, which for the time being shall be due on the purchase

money. security of these presents: PROVIDED ALWAYS, and it is Mortgag hereby agreed and declared, that the said E. F. and G. H., to be answer

able for invo. or either of them, their or either of their executors, ad- luntary losses. ministrators, or assigns, or the said I. K. and L. M. or either of them, their or either of their executors, administrators, or assigns, shall not be answerable or accountable for any involuntary losses which may happen in or about the execution of the aforesaid powers or trusts or any of them : PROVIDED ALSO, and it is hereby agreed and de- Power of sale clared, that the aforesaid power of sale, or anything herein the contained, shall not in anywise prejudice or affect the right foreclosure. to foreclose the equity of redemption of the premises aforesaid, or of the unsold part thereof for the time being : PROVIDED ALWAYS, and it is hereby agreed between and Agreement beby the said A. B. and C. D., that, as between the said tween the morte

gagors as to A. B., his heirs, executors, and administrators, and the said the order of C. D., his heirs, executors, and administrators, the said A. B., his heirs, executors, and administrators shall be pri- the estates. marily liable to the payment of the said sums of £45,000 and £15,000 and interest, and that as between the said A. B., his heirs, executors, and administrators, and the person or persons for the time being entitled to the equity of redemption of the said mortgaged premises, the said mortgaged premises shall be the primary fund for the payment of the said sums of £45,000 and £15,000, and the interest thereon respectively; and that as between the said castle, park, messuages, lands, and other hereditaments hereinbefore granted and released, or intended so to be, and VOL. III.

not

affect

of

Ν Ν

es and

« PreviousContinue »