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The preceding agreement not to affect mortgagees.
Clauses relating to the surplus purchasemonies of the settled estates.
the said manors, messuages, farms, lands, and other hereditaments hereinbefore appointed, or intended so to be, the said castle, park, messuages, lands, and other hereditaments, hereinbefore granted and released, or intended so to be, shall be the primary fund for payment of the said sums of £45,000 and £15,000, and the interest thereon respectively (d): Provided Always, and it is hereby agreed and declared between and by the parties to these presents, that the provisions hereinbefore contained with respect to the primary liability to the payment of the said sums of £45,000 and £15,000 and interest, shall not be construed to affect the persons for the time being respectively entitled to the said sums of £45,000 and £15,000 and interest, or to prevent them from resorting to the said A. B., his heirs, executors, or administrators, and the said C. D., his heirs, executors, or administrators, or any of them, and to the said mortgaged premises or any of them, at the same time, or in such order as they shall think fit. [Power to X. and Y. and the survivor of them, and the executors and administrators of such survivor, to give receipts, supra, p. 293, and to lay out the money to be paid to them or him in the purchase of lands to be settled to the uses of the deed of the 26lh of November, 1832, and to invest the sam e in the meantime, and pay dividends as rent. See the subsequent volume of this work, Title Settlements.—Power to A. B. and C. D., and the survivor, and the executors or administrators of the survivor, to appoint new trustees in the room of X. and Y., supra, p. 294, and infra, Title SetTlements.— Usual clauses for the indemnity and reimbursement of trustees, supra, p. 294, and infra, Title SetTlements.] In Witness &c.
(d) Where two estates are mortgaged together, or two persons having distinct interests in an estate join in a mortgage, the order in which the estates and the mortgagors are to be primarily liable should always be declared in the mortgage-deed, so as to prevent disputes on the subject Of course, however, the mortgagees should be excluded from any connection with this declaration, by the insertion of an express proviso to that effect.
MORTGAGE of Leaseholds by way of Leaseholds
THIS INDENTURE, made &c. Between A. B. and Parties.
(a) An assignee of a lease is liable to the payment of the rent reserved, Comparative and the performance of the covenants contained in the lease, although he advantages o: do not enter on the premises, (supra, p. 338, n. (/(); 1 Wms. Saund. 241 a, TM,^e?*ease' n. (16) ). And although it was once held, that this did not apply to an and assignassignee upon mortgage, (Eaton v. Jacques, 2 Doug. 444); yet it is now meaL well settled, that a mortgagee who takes an assignment of a lease by way of mortgage, although he never enters upon or takes possession of the property, becomes liable to the rent and covenants of the lease. (Williams v. Bosunquet, 1 Brod. & Bing. 238). Hence, in framing a mortgage of leasehold property, it becomes necessary to consider whether the rent and covenants are of such an amount and nature, as to render the liability to them a serious incumbrance. If the rent be trifling, and the covenants not of a kind likely to be burdensome, the mortgage should be made by assignment, because it is expedient that the mortgagee should have the whole legal interest rather than a mere derivative estate. It is expedient, both for the purpose of a sale and because it precludes the mortgagor from forfeiting, or doing other mischief, with the nominal reversion which is left in him by an underlease. If, however, the rent be large, or the covenants of formidable liability, the mortgage must be made by underlease. The mortgagee will not then be liable to the superior landlord in respect of the rent or covenants of the original lease; (Holford v. Hatch, 1 Doug. 183; Earl of Derby v. Taylor, 1 East, 502); although, of course, the chattels on the property will be liable to distraint. The risk, that the mortgagor may, by means of the nominal reversion left
Recital of leases.
Of their having vested in the mortgagors.
Recital of an
&c, [mortgagee], of the other part, [Recites a lease of the 14th day of February, 1760, for 999 years, and another lease of the 13th day of July, 1765, for the term of 993 years; see the mode of recital, supra, p. 340]: And Whereas, by divers mesne assignments and acts in the law,
and ultimately, by an indenture bearing date the day
of , and made, or expressed to be made, between
[parties], the said hereditaments and premises comprised in the said indenture of the 14th day of February, 1760, were assigned to the said A. B. and C. D., their executors, administrators, and assigns, in equal shares as tenants in common, for the residue then to come of the said term of 999 years, at the rent and subject to the covenants and agreements in the said indenture of the 14th day of February, 1760, reserved and contained, and on the part of the lessee, his executors, administrators, and assigns, to be observed and performed; [similar recital as to the term of '993 years]: And Whereas, by an indenture bearing date the 28th day of April, 1838, and made, or expressed to be made, between the said A. B. and C. D. of the one part, and the said E. F. of the other part(6): After Reciting That the said A. B. and C. D. were entitled to all that messuage or tenement and premises, situate and being in , for all the residue of the
said term of 999 years thereof, granted by the said indenture of the 14th day of February, 1760, and to all that messuage or tenement and premises, situate and being in ,
for all the residue of the said term of 993 years thereof, granted by the said indenture of the 13th day of July, 1765, and also to a messuage or tenement and premises, situate and
being in , for all the residue of a term of thirty years
wanting three days thereof, granted by an indenture of
in him, cause a forfeiture of his term must be undergone; but the difficulty with regard to a sale may be removed by the introduction into the power of sale, of a special clause. (See, infra, p. 549). The precedent in the text may be easily adapted to the case of a mortgage by assignment; and a precedent of such a mortgage, (united with a mortgage of freeholds), maybe seen, infra, Precedent LIX. p. 550.
(6) With regard to equitable mortgages, see supra, p. 15C.
underlease bearing date the 24th day of June, 1835: And Leaseholds, After Reciting That the said A. B. and C. D., having occasion for the sum of £1,000, had requested the said E. F. to advance and lend them the same upon the security of a mortgage of the said several messuages or tenements and premises, thereinbefore mentioned: And After ReCiting That the title of the said A. B. and C. D. to the said several messuages or tenements and premises was then in course of investigation on behalf of the said E. F., and
that the said premises in and were let at rents
to a considerable amount, and the premises in , were
about beinglet at a considerable rent: And After Reciting That the said A. B. and C. D. having immediate occasion for the sum of £800, part of the said sum of £1,000, had applied to and requested the said E. F. to advance them the same, which the said E. F. had agreed to do; and that it had also been agreed that the repayment of the said sum of £800 should be secured in the meantime, with interest after the rate of £5 per cent, per annum, by the said indenture now in recital, and by a deposit of the title-deeds mentioned in the schedule thereunder written or thereunto annexed, (being the title-deeds of the said several leasehold premises): And After Reciting That, in pursuance of the said agreement, the said A. B. and C. D. had, before the date and execution of the said indenture now in recital, deposited the said deeds and writings in the hands of the said E. F.: It Was
By THE SAID INDENTURE NOW IN RECITAL WITNESSED,
that, in consideration of the sum of £800 to the said A. B. and C. D. paid by the said E. F., the said A. B. and C. D. did for themselves, their heirs, executors, and administrators, and each of them did for himself, his heirs, executors, and administrators, covenant with the said E. F., his executors, and administrators, that, in case a legal mortgage should not have been made and completed to the said E. F. in the meantime, they, their heirs, executors, or administrators, would
at any time after the day of last, on demand, pay
to the said E. F., his executors, administrators, or assigns, the sum of £800, with interest thereon from the date of the said indenture now in recital, after the rate of £5 per cent. LEASEHOLDS.
—of a surrender of the underlease, in order that the original lease might be renewed.
—of grant of new underlease to mortgagor.
per annum, and that they, their executors or administrators
would, before the said day of last, deduce a good
and marketable title to the said several messuages or tenements, and premises, for all the residue of the said several terms therein, subject only to the payment of the several rents reserved by the said several indentures of lease, and the covenants and agreements therein respectively contained; and that they, their executors and administrators,
and all other necessary parties, would on the said day
of last, or at such earlier period as should be agreed
on, at the costs and charges of them the said A. B. and C. D., their executors and administrators, demise unto the said E. F., his executors, administrators, and assigns, free from incumbrances, (except as aforesaid), the said several messuages or tenements and premises, with their rights, members, and appurtenances, for all the residue of the said several terms therein, (leaving a reversion in the mortgagors of one day), for securing the repayment of the said sum of £1,000, with interest for the same at the rate of £5 per cent, per annum, and that such mortgage should contain such provisions as the counsel of the said E. F. should think suitable, in the case of a mortgage by way of underlease, including powers of sale and insurance of the said premises against loss or damage by fire: And Whereas the said term of thirty years wanting three days, granted by the said indenture of the 24th day of June, 1835, was, after the date and execution of the said indenture of the 28th day of April, 1838, surrendered to M. N. and P. Q., the lessors, by whom the same was granted, in order to enable them to obtain a new lease of the premises comprised in the same term: And Whereas the said M. N. and P. Q. afterwards obtained a new lease of the same premises, and by an indenture bearing date the 23rd day of June, 1838, and made, or expressed to be made, between the said M. N. and P. Q. of the one part, and the said A. B. and C. D. of the other part, demised unto the said A. B. and C. D., their executors, administrators, and assigns, all that the said messuage or tenement, situate and being in street, and numbered
, in the county of , and late in the occupation of