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SECURE POR

TION.

some part thereof, contrary to the aforesaid proviso for BY DEMISE TO 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 G. 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: AND Declaration by LASTLY, the said E. F. doth hereby declare, that, as between the inheritance his real and personal representatives, his personal estate that his pershall be the primary fund for payment of the said sum of to be primary £7,000, and the interest thereof (e). IN WITNESS &c.

the owner of

sonal estate is

liable.

LXIII.

MORTGAGE of two LEASES of MINES with
the LICENCE of the Lessors; with Restrictions
against further Assignments, without fresh
Licences. POWER of SALE. PROVISIONS for
Payment of the Mortgage-money by INSTAL-
MENTS, and of the POSTPONEMENT of the Pay-
ment of Instalments in certain Events. RE-
LEASE by one of the Lessors of a former Breach
of Covenant.

OF MINELEASE-MONEY TO BE PAID BY INSTALMENTS,

THIS INDENTURE, made &c. BETWEEN A. B., of Parties. &c., [mortgagor], of the first part; C. D., of &c., [first lessor], of the second part; E. F., of &c., [second lessor], of the third part; and G. H. and I. K., of &c., bankers and co-partners, [mortgagees], of the fourth part; [recites Recital of first a mining lease, dated the 25th of March, 1823, from M. N. lease.

(e) This clause is inserted to prevent the disputes which might otherwise arise between the real and personal representatives of the owner of the fee, from his having covenanted for payment of the money. (See Coote on Mortgages, Book V. Ch. 3). It may be proper to protect the mortgagee by a clause similar to that given, supra, p. 536.

OF MINELEASE-MONEY TO BE

PAID BY INSTALMENTS.

-and the proviso for re

entry.

-of second lease.

-and the co

venant not to

assign.

to A. B. for a term of forty years, and recites at length the proviso for re-entry on several events, and among others], "in case the said A. B., his executors or administrators, should grant, assign, exchange, let, demise, or part with the possession of the said demised messuage, lands, mines, and premises, or any part thereof, unto any person or persons whomsoever, (except to or in trust for his wife, children, or child), without the express licence and consent of the said M. N., his heirs or assigns, first had and obtained in writing under his or their hand or hands for that purpose, or if the said A. B., his executors or administrators, should suffer the said thereby demised messuage, lands, mines, and premises, or any part thereof, or the said lease now in recital, to be extended or taken in execution for any debt, cause, or thing whatsoever, or if the said A. B., his executors or administrators, should commit any act of bankruptcy within the meaning of any statute or statutes, made, or to be made in relation to bankrupts, whereon a commission of bankrupt should issue, and he or they should be found and declared to be bankrupt, and such commission should not afterwards be vacated, abandoned, or superseded, without delay": [Recites a mining lease, dated the 29th of December, 1823, from P. Q. to A. B., for a term of twentyone years, at (among other rents) a rent of £1,000, to be paid in each year for one acre, whether worked or not, and reciting at length as follows:] AND in the said indenture now in recital were contained divers covenants, agreements, and conditions, on the part of the said lessee, his executors, administrators, or assigns, to be observed and performed, and particularly in the said indenture now in recital was contained a proviso, that he the said A. B., his executors, administrators, and assigns, should not during the said term thereby demised, until the whole of the said mine rent or payments should be satisfied and discharged, assign over or under-let, or agree to demise, assign, or under-let, all or any part of the mines, minerals, or other matters, thereby granted or demised, or intended so to be, for all or any part of the said term, without the licence, approval, and consent in writing of the said P. Q., his heirs or assigns, for every such purpose,

OF MINELEASE-MO

NEY TO BE PAID BY INSTALMENTS.

-of various

with creditors, to the present mortgagees.

and a mortgage

-of the present ownership of the reverleases.

sion of the

from time to time, first had and obtained (a): [Recites divers dealings of A. B. with his creditors, and a final release by them to him of all claims, excepting a claim by G. H. and I. K., in respect of a mortgage by demise of the property comprised in the term of twenty-one years for securing transactions £9,000 and further advances, not exceeding in the whole £10,000]: AND WHEREAS the reversion expectant on the said term of forty years, granted by the said indenture of the 25th day of March, 1823, of and in the premises therein comprised is now vested in the said C. D., and the reversion expectant on the said term of twenty-one years, granted by the said indenture of the 29th day of December, 1823, of and in the premises comprised, is now vested in the said E. F. (b): AND WHEREAS a considerable sum of money is now due and owing by the said A. B. to the said G. H. and I. K. upon the security of the said indenture of the day of 1836: AND WHEREAS the said G. H. and for other and I. K., in order to enable the said A. B. to effectuate the arrangement hereinbefore mentioned to have been made with his said creditors, and for other purposes, have at the request of the said A. B. advanced and paid divers large sums of money to, or to the order, or for the use, or on the account of the said A. B.: AND WHEREAS, upon the treaty for the said advances it was agreed that the re-payment of such sums of money as should upon an account stated be found due from the said A. B. to the said G. H. and I. K., as well upon the said security as in respect of the said advances, should

of money owing to mortsecurity.

gagees on their

advances.

-of agreement for present

mortgage.

(a) In recitals of leases it is necessary to give the literal description, Recitals of not only of the lands, but also of all the powers, privileges, and ease- leases. ments demised. The exceptions and reservations, too, must be stated in the words of the lease; for otherwise the recital would give an inaccurate view of the operation of the lease. It is also proper to state the rents reserved in the words of the lease, and in leases of mines in which the rents are usually numerous and complicated in their circumstances, this is especially necessary; there is, in fact, no proper alternative but that of referring to them generally, as "the rents thereby reserved;" for to half state them is extremely mischievous.

(b) This, perhaps, is a sufficient recital as to the ownership of the reversion; but even if it be not so, it is seldom in the power of the leaseholder to furnish any other.

[blocks in formation]

OF MINELEASE-MONEY TO BE

PAID BY INSTALMENTS.

-of amount of existing debt.

-of agreement to include first lease in the security.

first lessor.

be secured to the said G. H. and I. K., their executors, administrators, and assigns, with interest in manner hereinafter mentioned: AND WHEREAS, upon an account this day stated between the said A. B. and the said G. H. and I. K., there is due and owing from the said A. B. to the said G. H. and I. K. the sum of £30,000: AND WHEREAS, as part of the said intended security, it was agreed that the said A. B. should, (with the licence and consent of the said C. D. first had and obtained), assign unto the said G. H. and I. K., their executors, administrators, and assigns, in manner hereinafter mentioned, the messuages, lands, mines, hereditaments, and premises by the said indenture of the 25th day of March, 1823, demised or -of consent of expressed and intended so to be: AND WHEREAS the said C. D. hath given his licence and consent (to be testified as hereinafter mentioned) to such assignment of the said premises as is hereinafter contained, upon condition that such power or right of re-entry as is mentioned in the indenture of even date herewith, hereinafter recited, and intended to be endorsed on the counterpart of the said indenture of the 25th day of March, 1823, should be granted to him the said C. D., and that the said G. H. and I. K. should enter into such covenant with him as in the same endorsed inden-of agreement ture is contained: AND WHEREAS, as further part of the said security, it was agreed that the said A. B. should (with the licence, approval, and consent of the said E. F. first had and obtained) assign unto the said G. H. and I. K., their executors, administrators, and assigns, in manner hereinafter mentioned, the messuages, lands, tenements, mines, hereditaments, and premises by the said indenture of the 29th day of December, 1823, demised or expressed and intended so to be: AND WHEREAS the said E. F. hath given his licence, approval, and consent (to be testified as hereinafter mentioned) to such assignment of the said lastmentioned premises as is hereinafter contained, upon the condition that the said G. H. and I. K. should enter into such covenant with him the said E. F., his heirs and assigns, as is contained in the indenture of even date herewith, hereinafter recited, and intended to be endorsed on the counterpart of the said indenture of the 29th day of

to include second lease in the security.

-of consent of second lessor.

December, 1823: AND WHEREAS there is a considerable arrear of mine-rent, amounting in the whole to the sum of £4,000 or thereabouts, due to the said E. F. upon the said indenture of the 29th day of December, 1823, and upon the treaty for the said advances it was agreed between the said A. B. and the said G. H. and I. K., that

OF MINELEASE-MO

NEY TO BE PAID BY INSTALMENTS.

-of arrears of

mine-rent owing to second

lessor, and arrangement in

of appre

hended breach

of covenant.

in case the said E. F., his heirs or assigns, should call for and compel payment of the said arrear, or any part thereof, consequence. in manner hereinafter mentioned, then the re-payment of the said principal sum of £30,000 should be made subject to the proviso and stipulations in that behalf hereinafter contained, for postponing in point of time the payment of the instalments thereof, in manner hereinafter mentioned: AND WHEREAS it is apprehended that the said A. B., by making the demise contained in the said indenture of the day of, 1836, without the licence, approval, or consent of the said E. F., committed a breach of his hereinbefore recited covenant in that behalf: AND WHEREAS the said -and agreeE. F. has agreed to release the said A. B., his heirs, executors, administrators, and assigns, from his and their liability in respect of such breach of covenant in manner hereinafter mentioned: AND WHEREAS, in pursuance of the said agreement in this behalf, by an indenture bearing or intended to bear even date with, but to be executed imme- right of re entry to the diately after, the execution of these presents, and already first lessor. prepared and endorsed on the counterpart (c) of the said

(c) In the precedent in the text, it will be seen, that the deeds of defeasance and covenant, which were executed to prevent any further assignments without fresh licences from the lessors, were endorsed on the counterparts of the leases. This arrangement saves the recital of the leases, but may of course be abandoned if inconvenient.

The deeds recited are rendered necessary by the doctrine established in Dumpor's case, 4 Co. Rep. 119; that if a licence to assign be once given, the restriction is at end. (See, too, Brummel v. Macpherson, 14 Ves. 173). In the first lease recited in the precedent, it will be seen, that the restriction on alienation was made by a condition of re-entry in case of assignment without licence; and hence, on a licence to assign being given, in order to put the lessor in the same situation he was in before, a new condition of re-entry is created by a deed of defeasance executed by the assignee. But, in the second lease, the restriction consisted only of a covenant by the lessee not to assign, and therefore a new

ment to release the same.

of deed of restore the

defeasance to

Method of restoring a con

dition not to assign without licence.

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