COPYHOLDS FOR AN AC- RENT. payment of mortgage-money. administrators, or assigns (c), the balance which on the account-current of the said A. B. with the said bankinghouse shall for the time being be due or owing from the said A. B., his executors or administrators, for the said sum of £- or for bills or notes to be hereafter discounted or paid, or other loans, credits, or advances made to or for the accommodation or at the request of the said A. B., his executors or administrators, or for interest, commission, or other lawful charges and expenses (d); AND Covenant for THE SAID A. B. doth hereby for himself, his heirs, executors, and administrators, covenant with the said C. D. and E. F., their executors and administrators, that, on demand in writing signed by 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, 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 he the said A. B., his heirs, executors, or administrators, shall and will pay or cause to be paid 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, the balance which on the account-current of the said A. B. with the said banking-house shall for the time being be due or owing from the said A. B., his executors or administrators, for the said sum of £ or for bills or notes to be hereafter discounted or paid, or other loans, credits, or advances made to or for the accommodation or at the request of the said A. B., his executors or administrators, or for interest, commission, or other lawful charges and expenses; and, in case such balance shall not be paid on and interest. such demand, shall and will pay or cause to be paid such interest, after the rate of £5 per cent. per annum, as shall (c) With respect to the effect of a change of partners on a security given to a firm, see supra, p. 521, n. (k). (d) As to the principles on which the proviso and covenant for payment should be framed in mortgages of this kind, see supra, p. 510, n.(f). COPYHOLDS FOR AN AC- RENT. Covenants for title. Declaration rity shall not posing the firm. Declaration as Mortgages to partners. legally accrue due upon such balance or any part thereof, up to the time at which the same shall be paid, [covenants by A. B. with C. D. and E. F., their heirs and assigns-for title, "other than the hereinbefore recited covenant for conditional surrender"—for right to surrender—for quiet enjoyment after default against all persons, "other than the said G. H., his heirs or assigns,”—free from incumbrances, "except the said sum of £- and interest, so secured to the said G. H., his executors, administrators, and assigns, as aforesaid," by all persons, "other than the said G. H., his heirs and assigns," and for further assurance—proviso for quiet enjoyment until default, supra, pp. 567 and 484. [Power of sale, supra, p. 518]: And it IS HEREBY agreed and declared that these presents are intended to be a security for the balance, which shall for the time being be due or owing on the account-current of the said A. B., his executors or administrators, with the said banking-house of the said C. D. and E. F., whether the business of the said banking-house shall be carried on by the present partners or by one of them, or by them or either of them, together with any other persons or person, or by any other persons or person only (e): AND IT IS HEREBY further agreed and declared between and by the parties to these presents, that the receipt or receipts in writing of the persons or person for the time being carrying on the business of the said banking-house, for any sum or sums of money intended to be secured by these presents, shall be a sufficient and effectual discharge or sufficient and effectual discharges to the said A. B., his heirs, executors, administrators, or assigns, or other the persons or person paying the same for the money therein respectively expressed to be received, so that he or they shall not be concerned to see to the application of such money, nor be answerable for any loss, mis-application, or non-application thereof (f): AND IT IS HEREBY lastly agreed and (e) See supra, p. 521, n. (k). () As it appears on the face of the deed that the mortgagees are co COPYHOLDS FOR AN AC COUNT CUR RENT. declared, that these presents are intended to be a security for the balance to be due on the account-current aforesaid; and that, for the purposes of the act imposing a duty ad valorem on such mortgage securities, the total amount of the to amount to money to be ultimately recoverable hereupon shall not exceed £ (g). IN WITNESS &c. be recoverable. LXV. MORTGAGE of a REVERSIONARY INTEREST in a Sum of STOCK (a). REVERSIONARY STOCK. THIS INDENTURE, &c., BETWEEN A. B., of &c., Parties. [mortgagor], of the one part; and C. D., of &c., [mortgagee], of the other part: [recites the will under which the mort- Recitals of title. gagor is entitled-death of the testator and probate of the partners in trade, and that the money advanced belongs to them on the partnership account, it is impossible to state that the money is held on a joint account; (see supra, p. 480, n. (a)). And as in partnership stock there is no survivorship (Collyer's Law of Partnership, Book II. Ch. 1. s. 1); the proviso in the text is added to enable the persons for the time being carrying on the business of the bank to discharge the mortgagor. As to how far this will render it necessary for the mortgagor to ascertain and shew in his future title, who were the persons for the time being carrying on the business of the bank, see supra, p. 507, n. (d). (g) With respect to the use and effect of this proviso, see the Stamp Act, 55 Geo. 3, c. 184, Art. MORTGAGE; and supra, p. 523, n. (/). (a) Before any money is advanced upon a security of this description, inquiry must be made of the legal holders of the fund as to the existence of any prior charge on it, and notice must be given to them of the security immediately upon its completion. (See supra, p. 374, n. (d)). A reversion is an inconvenient subject for mortgage, because it yields no income for the discharge of the interest. INTEREST IN STOCK. tal of title. Recital of agreement for loan. REVERSIONARY will:] AND WHEREAS the whole of the real and personal estate, by the said will of the said [testator] appointed or further reci bequeathed for the benefit of the said [tenant for life], and her children as aforesaid, has been conveyed and distributed to or among the persons entitled thereto under the said will, except a sum of £- -, 3l. 10s. per cent. Reduced Bank Annuities, now standing in the names of the said [trustees], and which said sum of £, 31. 10s. per cent. Reduced Bank Annuities, subject to the life-interest therein of the said [tenant for life], now belongs to her five children, the said A. B., &c., in equal shares as tenants in common (b): AND WHEREAS the said C. D. hath agreed to advance and lend to the said A. B. the sum of £, upon having the re-payment thereof, with interest for the same after the rate of £- per centum per annum, secured in manner hereinafter mentioned: NOW THIS INDENTURE WITNESSETH, that, in pursuance of the said agreement, and in consideration of the sum of £ &c., the receipt &c., (supra, p. 465), he the said A. B. hath assigned and by these presents doth assign unto the said C. D., his executors, administrators, and asssigns, ALL THAT one equal fifth part or share to which the said A. B. is entitled, expectant on the death of the said [tenant for life], of and in the said sum of £- 37. 10s. per cent. Reduced Bank Annuities, and of and in the money to arise by the sale thereof, and of and in the stocks, funds, and securities in or upon which the same shall be invested, and of and in Witnesseth. Assignment. -of mortgagor's reversionary share in fund. Remarks on the recitals. (b) The recitals in the text are irregular. It would have been more correct to have stated all the facts, so that the mortgagor's interest might have been deduced from them, instead of merely stating his interest, as is done in the text. (See supra, p. 427). If it were absolutely necessary to make the recital very brief, the best course would have been to have stated, "that, by virtue of the will of, the mortgagor, as one of the five children of was entitled to an equal fifth part of a sum of £-, standing in the name of." It is of the utmost importance to give an accurate description, both in the recitals and the witnessing part, of the fund intended to be assigned. An instance of the ill effects of inaccuracy in an assignment, may be seen in the case of Lucas v. Bond, 2 Keen, 136; supra, p. 90. INTEREST IN STOCK. Habendum. the dividends, interest, and annual produce thereof, AND ALL REVERSIONARY THE ESTATE, &c. (c): TO HAVE AND TO HOLD the said onefifth part or share, and all and singular other the premises hereinbefore assigned, or expressed and intended so to be, unto the said C. D., his executors, administrators, and assigns, subject to the proviso for redemption hereinafter contained: (that is to say), PROVIDED ALWAYS, and it is hereby Proviso for reagreed and declared between and by the said A. B. and demption. C. D., and the true intent and meaning of them and of these presents nevertheless is, that if the said A. B., his executors, administrators, or assigns, shall and do pay or cause to be paid unto the said C. D., his executors, administrators, or assigns, the sum of £, and the sum of £- as and for one year's interest for the same at the rate of £ for £100 by the year, making together the sum of £, in the parts, shares, and proportions, on or at the days or times hereinafter mentioned, (that is to say), the sum of £, part thereof, being half-a-year's interest for the said sum of £- 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 £, residue thereof, being the whole of the said principal sum of £ and another half-year's interest for the same after the rate aforesaid, on the day of then next following, and which will be in the year without any deduction or abatement whatsoever, then and in such case the assignment hereinbefore contained shall be absolutely void (d), [covenant for payment of mortgage Covenant for (c) It is a very common practice to insert a power of attorney in all assignments of choses in action. (See the forms, supra, pp. 252 and 372, and infra, p. 613). But this indiscriminate use of the form is erroneous; for a power of attorney is only available or needed when the remedy is to be in a court of law. The assignee of any interest can sue in a court of equity, altogether independently of a power of attorney; and therefore, where the interest assigned is clearly equitable, so as not to be within the reach of any legal remedy, a power of attorney, whether long or short, is mere surplusage. (d) There is no necessity for the employment of this form of proviso, (see supra, p. 468, n. (i)); but it has been retained in the present case as an example of a compendious form, which circumstances may render it payment of Powers of attorney when required. |