OF MINELEASE-MO NEY TO BE PAID BY INSTALMENTS. The lessor not to be affected by the two last provisos. Proviso for quiet enjoyment by the mortgagor until default. instalments shall be again interrupted by a further demand of such forehand payments of rent as aforesaid, after which they shall recommence, and so from time to time till the whole of the principal monies and interest intended to be hereby secured shall be paid: PROVIDED ALWAYS, and it is hereby expressly declared, that nothing herein contained shall in anywise hinder or prevent, or be taken to hinder or prevent, the said E. F., his heirs or assigns, from calling for or compelling payment of the whole of the said arrears of rent or any part thereof, or any rent hereafter to accrue due on the said indenture of the 29th December, 1823, when and as he or they shall think fit: PROVIDED ALWAYS, and it is hereby agreed and declared between and by the said A. B. and the said G. H. and I. K., and the true intent and meaning of them and of these presents nevertheless is, that it shall be lawful for the said A. B., his executors, administrators, and assigns, peaceably and quietly to have, hold, occupy, and enjoy all the said premises hereinbefore assigned, or expressed and intended so to be, and to receive and take the rents, issues, and profits thereof to his and their own use until default shall be made in payment of some or one of the said instalments of £750, or some part thereof, or of the interest for the time being payable, or of some other principal monies or interest intended to be hereby secured after the day or time when the same shall be payable, according to the true intent and meaning of these presents, without any let, suit, trouble, interruption, or disturbance whatsoever, of, from, or by the said G. H. and I. K., their executors, administrators, or assigns, or by any other person or persons whomsoever, lawfully or equitably claiming or to claim by, from, or under them, or any of them: AND THIS INDENfurther release TURE ALSO WITNESSETH, that, in pursuance of the said agreement in this behalf, and in consideration of the premises, he the said E. F. hath acquitted, released, and discharged, and by these presents doth acquit, release, and discharge the said A. B., his heirs, executors, and administrators, and his and their and every of their estates and effects, of and from all and all manner of actions, suits, accounts, reckonings, damages, expenses, claims, and de Witnesseth, of a former breach of covenant. mands whatsoever, for or on account or in respect of the said underlease or demise so made by the said A. B. as aforesaid, in and by the said indenture of the day of, without the licence, approval, or consent of the said E. F., or for or on account or in respect of the breach of his said covenant in that behalf thereby committed or incurred by the said A. B., [but so nevertheless that this present release shall not license or authorize, or be taken or deemed to license or authorize any further or other demise, assignment, or underlease, to be made by the said A. B. of the premises comprised in the said indenture of the 29th day of December, 1823, or any of them, or any part therof (i).] IN WITNESS &c. OF MINELEASE-MO NEY TO BE PAID BY INSTALMENTS. LXIV. MORTGAGE of COPYHOLDS, (subject to a PRIOR COPYHOLDS FOR AN ACCOUNT CUR RENT. THIS INDENTURE, made &c. BETWEEN A. B., of &c., Parties. [mortgagor], of the one part; and C. D. and E. F., of &c., (i) The words in brackets appear to be the offspring of abundant caution, and may safely be omitted. (a) There is always considerable risk in taking a second mortgage, although this risk in the case of copyholders is diminished by the power which the mortgagee possesses of getting a notice of his security put upon the court-rolls. In the case of freeholds, if the first mortgagee (who of course has the custody of the title-deeds) will so permit, a notice of the second mortgage may be endorsed on the first mortgage, or some other principal title-deed. But unless some notice of the second mortgage can be affixed to the title, there is danger that a third mortgagee, without notice, may pay off the first and get the legal estate, which would give him priority over the second, not only for the amount of the first mortgage, but also for his own advances. And a notice Mortgage of an equity of redemption. COPYHOLDS FOR AN AC COUNT CUR RENT. covenant to surrender in mortgage. bankers and co-partners, [mortgagees], of the other part: WHEREAS, by an indenture bearing date the day of and made or expressed to be made between the said Recital of prior A. B. of the one part, and the said G. H. of the other part, in consideration of the sum of £ by the said G. H. paid to the said A. B., the said A. B. did for himself, his heirs, executors, and administrators, covenant with the said G. H. and his heirs, that he the said A. B. or his heirs would, at or before the next court to be holden in and for the manor to the first mortgagee personally is of no avail against the third mortgagee obtaining the legal estate. (Peacock v. Burt, Coote on Mortgages, 693, 2nd edit.). A notice, however, endorsed by a third mortgagee on the first mortgage-deed, does not avail against a second mortgagee, although the third mortgagee have no notice of the second. (Jones v. Jones, 8 Sim. 333). For it is not incumbent on a mortgagee of an equity of redemption to give notice of his charge to the owner of the legal estate, although an assignee of a chose in action is bound to do so. (Supra, p. 374, n. (d)). The equity of redemption is the subject of conveyance, and is held by title; whereas a chose in action is a mere subject of contract, which can only effectually pass, by delivery after it has been reduced into possession. (See supra, p. 374, n. (d) ). But although the incumbrancers on the equity of redemption rank according to their priority in point of time, unless one not having notice of the other obtains the legal estate, yet a mortgagee of an equity of redemption should never fail to inquire of the first mortgagee the amount of the sum due to him, and whether he has any other claims which may affect the estate, and to give him notice of the second mortgage; for a first mortgagee is entitled to tack sums which became due to hin at any time before he receives notice of the subsequent incumbrance. There is said to be a peculiarity attending mortgages to secure future advances, for it is alleged, that if, subsequently to such a mortgage, a second mortgage be made to a person having notice of the first, and the first mortgagee, having notice of the second, afterwards make further advances, he may tack those advances as against the second mortgagee, because it was the folly of the latter to lend on such a security. Gordon v. Graham, 7 Vin. Abr. 52, is cited as the authority for this position, (Coote on Mortgages, 513, 2nd edit.); but it appears, that, in spite of the decision, it was ultimately ordered that the Master should report what money was lent by the first mortgagee after he had notice of the second, and the point can therefore hardly be considered to have been decided. See further, on this subject, Coote on Mortgages, 2nd edit. Book II. Ch. xiii.; Book IV. and Book V. Ch. i.; and ante, Vol. I. Art. MORTGAGES. See, too, infra, n. (b). of COPYHOLDS FOR AN AC- RENT. in the county of, well and effectually surrender or cause to be surrendered into the hands of the lord or lady, lords or ladies of the said manor, according to the custom thereof, the hereditaments hereinafter particularly mentioned and covenanted to be surrendered, with their appurtenances, to the use of the said G. H., his heirs and assigns, to be holden 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, but subject to the proviso in the said indenture now in recital contained for making void the said surrender, on payment by the said A. B., his heirs, executors, administrators, or assigns, to the said G. H., his executors, administrators, or assigns, of the sum of £ at the time therein mentioned, with interest for the same after the rate of £- per cent. per annum, at the times and in manner therein mentioned: AND WHEREAS no surrender was made in pur--that no sursuance of the said covenant: AND WHEREAS the said sum made. of £ still remains due and owing on the security of the said indenture of the day of―, but all interest for last has been paid: AND render was that mortgage debt remains unpaid. that the mortgagor is indebt ed to the new mortgagees. the same up to the day of WHEREAS the said A. B. has for some time past kept an account with the said C. D. and E. F., as bankers as aforesaid, and the said C. D. and E. F. have from time to time paid or advanced divers sums of money to or on account of the said A. B., and the said A. B. has also become indebted to the said C. D. and E. F. for interest, commission, and other matters: AND WHEREAS, upon an account this day stated between the said A. B. and the said C. D. and E. F., as bankers as aforesaid, there is due, and owing from the said A. B. to the said C. D. and E. F. the sum of £ and no more: AND WHEREAS it is probable that other of the prosums may hereafter become due and owing from the said A. B. to the said C. D. and E. F.: AND WHEREAS of the amount of existing spect of fresh advances. of agreement it has been agreed that the re-payment of the said sum for mortgage. of £ and of all such sums as shall in manner hereinafter mentioned become due from the said A. B. to the said C. D. and E. F., or the persons or person for the time being carrying on the business of the said banking-house, their or his executors, administrators, or COPYHOLDS FOR AN AC- RENT. Witnesseth, Covenant to surrender. Subject to the first mortgage. assigns, shall be secured in manner hereinafter mentioned: NOW THIS INDENTURE WITNESSETH, that, in pursuance of the said agreement, and in consideration of the said sum of £ so due and owing from the said Consideration. A. B. to the said C. D. and E. F. as aforesaid, and for securing the re-payment thereof, and of all such sums of money as shall in manner hereinafter mentioned become due or owing from the said A. B. to the said C. D. and E. F., or the persons or person for the time being carrying on the business of the said banking-house, their or his executors, administrators, or assigns, he the said A. B., &c., [covenant to surrender the copyholds to the use of C. D. and E. F., their heirs and assigns, supra, p. 566 (b):] But SUBJECT and without prejudice to the conditional surrender to be made to the use of the said G. H., his heirs and assigns, in pursuance of the hereinbefore recited covenant: AND SUBJECT ALSO to a proviso or condition for making void the said surrender hereby covenanted to be made, if the said A. B., his heirs, executors, administrators, or assigns, shall and do, on demand in writing signed by the said C. D. and E. F., or other the persons or person for the time being carrying on the business of the said bankinghouse, or any of them, their or any of their executors, administrators, or assigns, and left on the premises hereby covenanted to be surrendered, or at the office of, in -, or at any time, without such demand having been left, pay or cause to be paid unto the said C. D. and E. F., or the persons or person for the time being carrying on the business of the said banking-house, their or his executors, Proviso for redemption. Mortgages of the equity of redemption of copyholds. (b) It is usual to take all mortgages of copyholds by a covenant to surrender, and there is no safety for either a first or subsequent mortgagee, unless an actual surrender be made, so as to put the mortgage on the court-rolls. Even, in the case of a first mortgage, if before the surrender a second mortgagee, without notice of the covenant, should take a surrender to himself, and be admitted, he would obtain priority; for he would have an equal equity with the first mortgagee, and would have the legal estate. (Oxwick v. Plumer, 5 Bac. Abr. 43; supra, p. 304, n. (a). ) To the second mortgagee the surrender serves as a notice of his mortgage on the court-rolls. (See, further, on Mortgages of Copyholds, supra, p. 565, n. (a), and p. 568, n. (c)). |