for quiet en joyment after default. LEASEHOLDS. THAT they the said A. B. and C. D. now have in themselves good right, full power, and lawful and absolute authority to demise the said several hereditaments and premises hereinbefore demised, or expressed and intended so to be, for the several terms hereinbefore granted of the same respectively, in manner aforesaid, according to the true intent and meaning of these presents: AND ALSO THAT if default shall be made in payment of the said sum of £1,050, or any part thereof, contrary to the aforesaid proviso and covenant for payment of the same, and the true intent and meaning of these presents, then and in such case it shall be lawful for the said E. F., his executors, administrators, and assigns, at any time or times thereafter, into and upon all and every the said hereditaments and premises hereinbefore demised, or expressed and intended so to be, or any of them, or any part or parts thereof, to enter, and the same from thenceforth during the continuance of the several terms, herein before respectively granted or expressed, and intended so to be, peaceably and quietly to have, hold, occupy, and enjoy, and receive and take the rents, issues, and profits thereof to and for his and their own use, without any let, trouble, interruption, or disturbance whatsoever, of, from, or by the said A. B. and C. D., or either of them, their or either of their executors, administrators, or assigns, or any other person or persons whatsoever, any estate, right, title, or interest, having or lawfully or equitably claiming, or to have, or lawfully or equitably claim, in or to the said hereditaments and premises, or any of them, or any part or parts thereof: -free from in- AND THAT, free and clear, and freely and clearly and absolutely acquitted, exonerated, and discharged, or otherwise by the said A. B. and C. D., their executors or administrators, saved, protected, kept harmless, and indemnified, of, from, and against all and all manner of former and other estates, titles, troubles, charges, and incumbrances whatsoever: AND MOREOVER, THAT they the said A. B. and C. D., and each of them, their and each of their executors and administrators, and all and every other persons and person whosoever, having, or lawfully or equitably claim cumbrances; -for further assurance; ing, or who shall or may have, or lawfully or equitably claim, any estate, right, title, or interest, of, in, or to the said hereditaments and premises hereinbefore demised, or expressed and intended so to be, or any of them, or any part or parts thereof, shall and will, from time to time and at all times hereafter, upon the request of the said E. F., his executors, administrators, or assigns, but at the costs and charges of the said A. B. and C. D., or one of them, their or one of their executors or administrators, make, do, and execute, or cause and procure to be made, done, and executed, all and every such further and other lawful and reasonable acts, deeds, matters, things, demises, and assurances in the law whatsoever, for the further, better, more perfectly, and absolutely demising and assuring all the said hereditaments and premises hereinbefore demised, or expressed and intended so to be, unto the said E. F., his executors, administrators, and assigns, for the several terms herein before respectively granted thereof, or expressed and intended so to be, as by the said E. F., his executors, administrators, or assigns, or his or their counsel in the law, shall be reasonably devised or advised and required: AND THAT they the said A. B. and C. D., their executors, administrators, or assigns, or some of them, shall and will from time to time, and at all times, so long as the said principal sum of £1,000 and the interest thereon, or any part of the said principal money or interest respectively, shall remain on the security of these presents, pay, observe, and perform, or cause to be paid, observed, and performed, 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 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: AND SHALL AND WILL save, defend, keep harmless, and indemnified the said E. F., his executors, administrators, and assigns, and every of them, of, from, and against all actions, suits, proceedings, costs, charges, damages, and expenses whatsoever, (if any), which LEASEHOLDS. and that, during the secuand covenants and performed. rity the rents shall be paid —and the mortgagee in demnified. LEASEHOLDS. Proviso for quiet enjoyment until default. Power of sale. Covenants for insurance of leaseholds. shall or may be incurred or sustained by reason or on account of the non-payment or non-performance of the same respectively, or any act, matter, or thing whatsoever, touching or concerning the same respectively (h): PROVIDED ALSO, and it is hereby agreed and declared between and by the said parties to these presents, and the true intent and meaning of them and of these presents nevertheless further is, that it shall be lawful for the said A. B. and C. D., their executors, administrators, and assigns, peaceably and quietly to have, hold, occupy, possess, and enjoy all the said hereditaments and premises hereinbefore demised, or expressed and intended so to be, and receive and take the rents, issues, and profits thereof, to their own use, until default shall be made in payment of the said sum of £1,050, or some part thereof, contrary to the aforesaid proviso or covenant for payment of the same 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., his executors, administrators, or assigns, or any other person or persons whomsoever, lawfully claiming or to claim by, from, or under him, them, or any of them, [covenants for insurance, supra, p. 514, and infra, Precedent LXXIV.](i): AND IT IS HEREBY further provided and declared, that if default shall be made in payment of the said principal sum of £1,000, or the interest thereon, or any part thereof respectively, at the times herein before (h) As to the intention and effect of this and the preceding covenant, see supra, p. 389, n. (7). (i) In framing covenants relating to insurance of leasehold property, care must be taken that the stipulations are not repugnant to any covenants for insurance which are contained in the original lease. As for instance, if the covenant in the lease be to insure in the name of the lessor, it must not be stipulated that the mortgage insurance shall be in the name of the mortgagee, for if it were so, the mortgagor would be obliged to keep up two insurances instead of one. It is not right, however, for the mortgagee to rely on the covenant in the original lease; he should insist on having a covenant for insurance on which he can himself sue. LEASEHOLDS. appointed for the payment of the same respectively, it shall be lawful for the said E. F., his executors, administrators, or assigns, at any time or times after such default shall have been so made, without any further consent on the part of the said A. B. and C. D., or either of them, their or either of their executors, administrators, or assigns, to make sale and dispose of the said messuages, buildings, and other hereditaments and premises hereinbefore demised, or expressed so to be, or any part or parts thereof, either together or in parcels, and either by public auction or private contract, with full power upon any such sale or sales to make any stipulations as to title or otherwise, which he or they shall deem necessary, and also with full power to buy in the premises, or any part thereof, at any sale or sales by public auction, or to rescind any contract or contracts for the sale of the same premises, or any part thereof, and to re-sell the premises which shall have been so bought in, or as to which any contract or contracts for sale shall have been rescinded as aforesaid, without being responsible for any loss which may be occasioned thereby, and that for the purposes aforesaid, or any of them, it shall be lawful for the said E. F., his executors, administrators, or assigns, to make and execute, or cause to be made and executed all such agreements, deeds, assignments, and assurances, as he the said E. F., his executors, administrators, and assigns, shall think fit: AND THAT after any After a sale, sale or sales shall have been made under the said power of mortgagors to sale by the said E. F., his executors, administrators, or assigns, they the said A. B. and C. D., their executors, administrators, and assigns, shall and will stand possessed of and interested in the said one day, of the said terms of 999 years, 993 years, and 27 years, wanting three days respectively, left in the said A. B. and C. D. by way of reversion, as hereinbefore is mentioned, upon trust for the purchaser or purchasers of the premises comprised in the same terms respectively, and to assign and dispose of the same as such purchaser or purchasers shall direct, but so nevertheless that the said E. F., his executors or administrators, or his assigns, (other than hold the rever sion in trust for purchaser. LEASEHOLDS. and except such assigns as shall have been purchasers under the aforesaid power of sale), shall not be entitled to call for an assignment of the said reversions, or have any interest therein (k). [Add the ordinary clauses in powers of sale, supra, p. 476]. IN WITNESS &c. FREEHOLDS AND LEASEHOLDS. Parties. Recital of a LIX. MORTGAGE of FREEHOLDS and RENEWABLE THIS INDENTURE, made &c. BETWEEN A.B., of &c., [mortgagor], of the first part; C. D., of &c., and E. F., of &c., [trustees for mortgagor], of the second part; and G. H., of &c., [mortgagee], of the third part: WHEREAS M. N., will devising in late of &c., being seised of or entitled to the capital messuage or mansion-house, pieces or parcels of land, and other hereditaments, hereinafter particularly mentioned, and intended to be hereby released, with the appurtenances, for an estate of inheritance in fee-simple, and being also trust for mort gagor in tail male. Provision, that in mortgages by underlease the reversion shall be held after a sale in trust for purchasers. (k) The last stipulation is inserted with a view to meet the objection alluded to, supra, p. 537, n. (a), The effect of the clause will be, that after a sale, the mortgagor will hold the reversion in trust for the purchaser, and may be compelled to assign it to him. It will be seen, that the possibility of the clause giving the mortgagee himself an interest in the reversion is expressly negatived, in order to prevent the application of the supposed doctrine of the Courts of Equity, that a cestui que trust of a lease might be compelled to take an assignment of the legal interest in the lease so as to subject him to the burden of the rent and covenants. (Lucas v. Comerford, 3 Bro. C. C. 166; S. C. 1 Ves. Jun. 235; and 8 Sim. 499; Flight v. Bentley, 7 Sim. 149; Jenkins v. Portman, 1 Keen, 435). But the expressions negativing this possibility were rather inserted from abundant caution than as being essential, and the cases referred to have been recently overruled. (Moores v. Choat, 8 Sim. 508). |