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covenant with the said C. D. and E. F., and their heirs, FREEHOLDS that he the said A. B. and his heirs shall and will, at or before the next court to be holden for the said manor of
- , at his and their own costs and charges, well and effectually surrender, or cause and procure to be surrendered into the hands of the lord or lady, lords or ladies of the said manor, according to the custom of the said manor, ALL THAT, &c., [copyhold parcels-general words], to-to the use
of the mort THE USE of the said C. D. and E. F., their heirs and assigns, to be holden according to the custom of the said manor, and by and under the fines, rents, heriots, suits, and services therefore due and of right accustomed, BUT SUBJECT to a proviso or condition for making void the —subject to
: proviso for same surrender on payment by the said A. B., his heirs, executors, administrators, or assigns, to the said C. D. and the surrender. E. F., or the survivor of them, or the executors or administrators of such survivor, their or his assigns, of the said sum of £1,050, in the parts and at the times in the proviso for redemption hereinbefore contained, appointed for the payment of the same respectively, [covenant for payment of mortgage- Covenant for money and interest, supra, p. 483]: AND THE SAID A. B.
mortgage doth hereby for himself, his heirs, executors, and adminis- money and intrators, covenant with the said C. D. and E. F., their heirs and assigns, by these presents in manner following, (that is to say), that the power herein before exercised by him the said that the A. B., or expressed and intended so to be, was well and point effectually created, and is now in full force and virtue, and good. in nowise suspended, extinguished, or become void: AND –for seisin of that he the said A. B. is at the time of the sealing and the copyholds. delivery of these presents lawfully and rightfully seised of or entitled to a good, sure, absolute and indefeasible estate of inheritance to him and his heirs, according to the custom of the said manor, and by and under the rents, fines, heriots, suits, and services, therefore due and of right accustomed, of and in the said messuages, hereditaments, and premises, hereinbefore covenanted to be surrendered, without any condition, use, trust, power of revocation, or limitation of any use or uses, or other restraint, cause, matter, or thing whatsoever, to alter, change, charge, incumber, lessen, deter
FREEHOLDS mine, defeat, or make void the same estate : AND THAT he
the said A. B. now hath in himself good right, full power, -for right to
to and lawful and absolute authority to appoint and grant, and appoint, con release and surrender all the said messuages, farms, lands, vey, and surrende. hereditaments, and premises, hereinbefore appointed and
granted, and released, or expressed or intended so to be, and covenanted to be surrendered respectively, unto and to the use of the said C. D. and E. F., their heirs and assigns, in
manner aforesaid, according to the true intent and meaning -and for quiet of these presents: AND ALSO, that if default shall be made default.
in payment of the said sum of £- , or any part thereof, contrary to the aforesaid proviso 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 C. D. and E. F., their heirs and assigns, at any time or times thereafter, into and upon all and every the said hereditaments and premises, or any of them, or any part or parts thereof, to enter, and the same from thenceforth 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., his heirs or assigns, or any other person or persons whomsoever, 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 -free from in- parts thereof: AND THAT free and clear, and freely and cumbrances,
clearly and absolutely acquitted, exonerated, and discharged, or otherwise, by the said A. B., his heirs, 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, other than the rents, fines, heriots, suits, and services, due, and of right accustomed in
respect of the said copyhold hereditaments and premises : —and for fur- AND MOREOVER, that he the said A. B. and his heirs, and ther assurance. all and every other persons and person whosoever, having,
or lawfully or equitably claiming, 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 FREEHOLDS herein before appointed and released, or expressed and intended so to be, and covenanted to be surrendered respectively, 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 C. D. and E. F., or either of them, their or either of their heirs or assigns, but at the costs and charges of the said A. B., his heirs, 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, appointments, conveyances, surrenders, and assurances in the law whatsoever, for the further, better, more perfectly, and absolutely appointing, granting, conveying, surrendering, and assuring all the said hereditaments and premises unto and to the use of the said C. D. and E. F., their heirs and assigns, in manner aforesaid, according to the true intent and meaning of these presents, (subject nevertheless, as to the said copyhold hereditaments, to the rents, fines, heriots, suits, and services, therefore due and of right accustomed), as by the said C. D. and E. F., or either of them, their, or either of their heirs or assigns, or their or his counsel in the law, shall be reasonably devised or advised and required : PROVIDED Also, and it is hereby agreed and declared Proviso for
: D and quiet enjoybetween and by the said A. B., and the said C. D. and me
na ment until E. F., and the true intent and meaning of them and of default these presents nevertheless further is, that it shall be lawful for the said A. B., his heirs and assigns, peaceably and quietly to have, hold, occupy, possess, and enjoy all the said hereditaments and premises, hereinbefore appointed and released, or expressed or intended so to be, and covenanted to be surrendered respectively, 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'sum of £1,050, or some part thereof, contrary to the aforesaid proviso 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 C. D. and E. F., their heirs or assigns, or by any other
person or persons whomsoever, lawfully or equitably claiming, or to claim, by, from, or under him, them, or any of them. IN WITNESS &c.
BY DEMISE TO
MORTGAGE by Demise for Part of a Term
of Years(a) for securing a PORTION. THIS INDENTURE, made &c. Between A. B., of &c., and C. D., of &c., [trustees of the term of years), of
Comparative advantages of mortgages in fee and for years.
(a) The most common mode of mortgaging in former times, at least when the sum was small, was when the sum was small, was by a demise for a long term of years; and to this circumstance most of the old attendant terms of the present day owe their origin. The method was recommended by its requiring only one deed, which needed neither enrolment nor livery of seisin; and by the circumstance, that the chattel estate created went to the mortgagee's personal representatives, together with the debt. But, on the other hand, the mortgagee, if he foreclosed, got only a term instead of the fee, and unless by special stipulation he was not entitled to the custody of the titledeeds; (supra, p. 45); or to the other advantages incident to a freehold estate. A mortgage, too, for a term did not admit of the introduction of an effective power of sale, for the mortgagee could alone dispose of the term unless the mortgagor concurred in the sale. These disadvantages have led to the almost universal abandonment of mortgages for terms of years, except in the cases of the mortgage being contained in a purchase-deed, (supra, Precedents XXXVI. and XXXIX.) or being made under a term or power contained in a settlement. In the former case there is no good reason for the practice, but in the latter it is a matter of necessity, unless the owner of the fee joins in the security. And it may happen, (as in the Precedent), that the owner of the fee may be willing to join and covenant for payment of the money, but may decline to divest himself of the freehold estate.
When a mortgage for raising or securing a portion, or a charge, is made by trustees alone, it is an inconvenient circumstance that there is no one to covenant for payment of the principal-money and interest, so that the mortgagee must look to the land as his only resort. But it is generally found, that the tenant for life or the owner in fee is willing to facilitate matters by entering into the necessary covenant. If the owner
Mortgages for securing and raising portions.
the first part; E. F., of &c., [the owner of the inheritance), BY DEMISE TO of the second part; and G. F., of &c., [mortgagee], of the third part: Whereas E. F., now deceased, (the father of Recital of will the said E. F., party hereto and of the said G. F.), duly crea made, signed, and published his last will and testament in writing, bearing date the day of — , and thereby gave and devised all his manors, messuages, lands, tenements, and hereditaments, and real estate, in the county of
- , unto and to the use of the said A. B. and C. D., their executors, administrators, and assigns, for the term of 500 years, to be computed from the day of his the said testator's decease, without impeachment of waste, upon and for the several trusts, intents, and purposes, thereinafter expressed and declared of and concerning the same, and in part hereinafter mentioned, and from and after the determination of the said term of 500 years, and in the meantime subject thereto and to the trusts thereof, the said testator gave and devised the said manors, messuages, lands, tenements, hereditaments, and real estate, unto and to the use of his the said testator's three sons, the said E. F. party hereto, the said G. F., and H. F., successively, according to their respective seniorities, in tail male, And the said testator of trusts of thereby declared that the said manors, hereditaments, and term to raise
a legacy, also premises, were so devised to the said A. B. and C. D., their an annuity or executors, administrators, and assigns, for the said term of D
1 01 option of the 500 years as aforesaid, upon trust, (among other things), legatee. that they the said trustees, or the survivor of them, or the executors or administrators of such survivor, should, before
of the fee be a party, the mortgage may be made in any manner the parties please; but if he be not a party, or if, from fear of letting in his incumbrances or otherwise, the mortgage be made in pursuance of the power, the terms of that power must be strictly adhered to. Thus, if the power authorize the creation of a term, with a proviso for cesser in certain events, the term which is created must be made to cease on those events. And if the mortgage be of a term, or under a term created by the original deed, it must be seen that the manner in which that term is dealt with conforms to the directions contained in the deed creating it. The law with respect to these matters will be found in Coote on Mortgages, 2nd edit., Book II. Chap. 6; and in 2 Sugd. Pow. Ch. 15, s. 3.