LEASEHOLDS.

of the mortgagors' title having been approved.

the said M. N. and P. Q., and now of —, with the rights, easements, and appurtenances thereunto belonging, to hold the same unto the said A. B. and C. D., their executors, administrators, and assigns, from the day of the date of the said indenture now in recital, for the term of twentyseven years wanting three days, at the yearly rent of £—, and under and subject to the covenants and agreements in the said indenture now in recital contained, and on the part of the lessees, their executors, administrators, and assigns, to be observed and performed: AND WHEREAS the title of the said A. B. and C. D. to the said several messuages or tenements and premises, hereinbefore particularly mentioned, has been approved of on behalf of the said A. B., and the said premises in are now let at a considerable rent; AND WHEREAS the said sum of £800 still remains due and owing upon the security of the said indenture of the 28th day of April, 1838, but all interest thereon has been paid up to the day of the date of these presents (c): AND WHEREAS the said E. F. has agreed, upon the request of the said A. B. and C. D., to advance them the further sum of £200, (being the remainder, after the advance of the said sum of £800 as aforesaid, of the said sum of £1,000,) upon having the repayment of the said sum of £1,000, with interest thereon after the rate of £5 per cent. per annum, secured in manner hereinafter mentioned (d): NOW THIS INDENTURE WITNESS- Witnesseth.

(c) Where a partial advance has been made before the execution of the mortgage, the interest on this advance must be paid up to the date of the mortgage, so that all the principal sums may be consolidated into one entire mortgage-debt, on which interest may be computed from the date of the mortgage. Unless this arrangement be made, and the necessary recital introduced, it will be found extremely difficult to frame the proviso for redemption, and the covenant for the payment of the mortgage-money and interest. The remark applies à fortiori, if there be several prior debts or accounts subsisting between the mortgagor and mortgagee.

(d) It is evident that, by omitting the recitals relative to the prior transactions between the mortgagor and mortgagee, and introducing the common recital of the agreement for the loan, the precedent in the text may be adapted to the case of a mortgage under ordinary circumstances.

of the original advance

being due.

of the agreement for com

pleting the advance.

Receipt.

Demise.

Parcels.

LEASEHOLDS. ETH, that, in pursuance of the said covenant in this behalf contained in the said indenture of the 28th day of April, 1838, and of the agreement hereinbefore contained, Consideration. and in consideration of the said sum of £800, so paid by the said E. F. to the said A. B. and C. D. as aforesaid, and of the said further sum of £200, paid by the said E. F. to the said A. B. and C. D., at or immediately before the sealing and delivery of these presents, (the receipt of which said sums of £800 and £200, making together the said sum of £1,000, they, the said A. B. and C. D., do hereby acknowledge, and of and from the same and every part thereof do, and each of them doth, acquit, release, and discharge the said E. F., his heirs, executors, administrators, and assigns for ever, by these presents), They, the said A. B. and C. D., have, and each of them hath demised and leased, and by these presents do, and each of them doth, demise and lease unto the said E. F., his executors, administrators, and assigns, ALL THAT piece or parcel of ground, and the messuage or tenement erected and standing thereon, and now known as number —, in — aforesaid, and all and singular other the hereditaments and premises by the said indenture of the 14th day of February, 1760, demised, or expressed to be demised as aforesaid: AND ALSO all that piece or parcel of ground in aforesaid, and the messuage or tenement erected and standing thereon, and all and singular other the hereditaments and premises by the said indenture of the 13th day of July, 1765, demised, or expressed to be demised as aforesaid: AND ALSo all that the said messuage or tenement, situate and being, and numbered, in street aforesaid, and all and singular other the hereditaments and premises by the said indenture of the 23rd day of June, 1838, demised, or expressed to be demised as aforesaid: AND ALL and singular the rights, easements, and appurtenances to the said pieces or parcels of ground, messuages, or tenements, respectively belonging (e): TO HAVE AND TO HOLD the said

Habendum.

The clause "All the estate, &c." not

(e) It is usual to omit the clause of "All the estate, &c." in demises by tenants for years, on the ground, that, if such clause be inserted, the whole estate passes, and cannot be abridged by the habendum. That is

pieces or parcels of ground, messuages, or tenements, and LEASEHOLDS. all and singular other the premises, hereinbefore demised or expressed and intended so to be, unto the said E. F., his executors, administrators, and assigns, as to such part of the said premises as were comprised in the said indenture of the 14th day of February, 1760, for all the residue now to come of the said term of 999 years thereby granted, wanting one day of the same term, and as to such part of the said premises as were comprised in the said indenture of the 13th day of July, 1765, for all the residue now to come of the said term of 993 years thereby granted, wanting one day of the same term, and as to such part of the said premises as were comprised in the said indenture of the 23rd day of June, 1838, for all the residue now to come of the said term of twenty-seven years wanting three days, thereby granted, except the last day of the same term, and as to all and singular the said premises, hereinbefore demised, or

to say, the intended demise becomes in fact an assignment of the whole inserted in term. The authorities usually quoted for this doctrine are-Co. Litt. underleases. 299. a.; Griffin's case, 2 Leon. 78; Lilley v. Whitney, Dyer, 272, pl. 30; Goshawke v. Chigwell, Cro. Car. 154; S. C. Jones, 205; Germain v. Orchard, 1 Salk. 346. But it cannot be said, that they bear out the position for which they are cited. In Griffin's or rather Wynnybank's case, the point in dispute was altogether different; and it does not even appear that there was any habendum; and, in the other cases, there was no express decision as to the point discussed in this note; it can only be deduced from them by argument. It is perfectly clear, that if the estate of the grantor be freehold, (as in the case of a lease for lives), the insertion of the clause of "All the estate," &c., does not destroy the operation of the habendum in abridging the estate granted by the premises; for if it were so, as the freehold could not pass by the deed, the grantee would take no estate at all. (Earl of Derby v. Taylor, 1 East, 502). And it is equally clear, that, notwithstanding the assertion in Co. Litt. 299. a., there are several cases where the habendum is allowed to abridge or qualify the premises. (Co. Litt. 183. a.; Com. Dig. tit. xxxii, Ch. 21, s. 79, et seq.) It may, perhaps, be prudent to omit the clause of "All the estate," &c., in underleases, especially as no apparent good is obtained by the insertion of it; but, (to say the least), it is probable, that in modern construction that clause would be held to be explained by the habendum. See, further, on the subject of habendums in leases, Strickland v. Maxwell, 2 Mee. & Wels. 539.

demption.

LEASEHOLDS. expressed and intended so to be, subject to the proviso for Proviso for re- redemption hereinafter contained, (that is to say), PROVIDED ALWAYS, and it is hereby agreed and declared between and by the parties to these presents, and the true intent and meaning of them and of these presents nevertheless is, that if the said A. B. and C. D., their executors, administrators, or assigns, shall and do pay or cause to be paid to the said E. F., his executors, administrators, or assigns, the sum of £1,000, and the sum of £50 as and for one year's interest for the same at the rate of £5 for £100 for a year, making together the sum of £1,050, in the parts, shares, and proportions, and on or at the days or times hereinafter mentioned, (that is to say), the sum of £25, being half-a-year's interest for the said sum of £1,000 at the rate aforesaid, on the day of

next ensuing the date of these presents, which will be in the year and the sum of £1,025, residue thereof, being the whole of the said principal sum of £1,000 and another half-year's interest for the same, at the rate aforesaid, on the

-day of — then next following, which will be in the year without any deduction or abatement whatsoever out of the same or any part thereof, for or in respect of any taxes, charges, rates, assessments, payments, or impositions, or any other cause, matter, or thing whatsoever (f), then and in such case he the said E. F., his executors, administrators, or assigns, shall and will, at any time after such payment shall have been so made as aforesaid, upon the request and at the proper costs and charges of the said A. B. and C. D., their executors, administrators, or assigns, surrender or assign the said hereditaments and premises hereby demised and leased, or expressed and intended so to be, unto the said A. B. and C. D., their executors, administrators, and assigns, or as they shall in that behalf order or direct, free from all incumbrances whatsoever, made, done, or committed by the said E. F., his executors, administrators, or assigns, or any of them, so as for the doing thereof the said E. F., his executors, administrators, or assigns, or any of them, be not

(ƒ) See supra, p. 467, n. (h).

payment of

mortgage

money and in

terest.

the leases are

compelled or obliged to go to or travel from the place or LEASEHOLDS. places of his, their, or any of their usual abode or dwelling: AND THE SAID A. B. and C. D. do for themselves, their Covenant for heirs, executors, and administrators, and each of them doth for himself, his heirs, executors, and administrators (g), covenant with the said E. F., his executors and administrators, by these presents, that they the said A. B. and C. D., their heirs, executors, or administrators, shall and &c. [covenant for payment of mortgage-money and interest, supra, p. 469]: AND THE SAID A. B. and C. D. do for Covenants that themselves, their heirs, executors, and administrators, good. and each of them doth for himself, his heirs, executors, and administrators, covenant with the said E. F., his executors, administrators, and assigns, by these presents, in manner following, (that is to say), THAT the said several indentures of the 14th day of February, 1760, the 13th day of July, 1765, and the 23rd day of June, 1838, respectively, are, at the time of the sealing and delivery of these presents, good, valid, and effectual leases in the law of the said hereditaments and premises therein respectively comprised, and that the same respectively are now in full force, unforfeited and unsurrendered, and in nowise become void or voidable: AND ALSO THAT all and singular the rents, covenants, and agreements, in and by the said indentures of the 14th day of February, 1760, the 13th day of and performed. July, 1765, and the 23rd day of June, 1838, respectively reserved and contained, and on the part of the several lessees therein respectively named, their respective executors, administrators, and assigns, to be paid, observed, and performed, have been paid, observed, and performed,

that the rents

and covenants

have been paid

up to the day of the date of these presents: AND ALSO for right to

demise.

venants.

(g) When the mortgagors are more than one in number, the mortgage Mortgage cocovenants are joint and several: there can be no doubt that this is correct, so far as relates to the covenant for payment of the mortgagemoney, and to the other covenants during the continuance of the mortgage; because the mortgagee ought to have every facility for obtaining payment of the mortgage-money and interest. But these covenants are not suited to the circumstances which take place after a foreclosure or sale. (See supra, p. 471, n. (e).