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Covenant for right to assign.
—and for further assurance.
Power of sale.
money and interest, supra, p. 4<39]: And The Said A. B. doth hereby for himself, his heirs, executors, and administrators, covenant with the said C. D., his executors and administrators, that he the said A. B. now hath in himself good right, full power, and lawful and absolute authority to assign the said part or share and premises hereinbefore assigned, or expressed and intended so to be, unto the said C. D., his executors, administrators, and assigns, in manner aforesaid, according to the true intent and meaning of these presents, and free from all incumbrances whatsoever: And Moreover, That he the said A. B., and his executors and administrators, and 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 part or share and premises hereinbefore assigned, or expressed and intended so to be, or any part thereof, shall and will from time to time and at all times hereafter, upon the request of the said C. D., his executors, administrators, or assigns, but at the costs and charges of the said A. B., his executors, administrators, or assigns, make, do, and execute, or cause and procure to be made, done, and executed, all and every such further and other lawful acts, deeds, matters, tilings, assignments, and assurances in the law whatsoever, for the further, better, more perfectly and absolutely assigning and assuring the said part or share and premises hereinbefore assigned, or expressed and intended so to be, unto the said C. D., his executors, administrators, and assigns, in manner aforesaid, according to the true intent and meaning of these presents, as by the said C. D., his executors, administrators, or assigns, or his or their counsel in the law, shall be reasonably advised, or devised and required: And It Is Hereby agreed and declared, that, if default shall be made in payment of the
said sum of £ or the interest thereof, or any part
thereof respectively, at the times hereinbefore appointed for the payment of the same respectively, it shall be lawful
useful to employ. The usual proviso for re-assignment, as given in the other precedents, may easily be substituted.
for the said C. D., his executors, administrators, or assigns, Reversionary at any time or times after such default shall have been Stock. so made, without any further consent on the part of the said A. B., his executors, administrators, or assigns, to make sale and dispose of the said fifth part or share hereinbefore assigned, or expressed and intended so to be,, of or in the said sum of £ , 31.10s. per cent. Reduced Bank Annuities, and other the premises hereinbefore assigned, or expressed and intended so to be, either by public auction or private contract, with full power upon such sale 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 said premises at any sale by public auction, or to rescind any contract for the sale of the same premises, and to re-sell the premises 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 C. D., 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 C. D., his executors, administrators, or assigns shall think fit: Provided Always, and it is hereby agreed Power not to be and declared, that the said C. D., his executors, adminis- "erased till
_ '' certain events
trators, or assigns, will not and shall not execute the power have happened.
of sale hereinbefore contained, unless and until he or they
shall have previously given a notice in writing to the said
A. B., his executors, administrators, or assigns, to pay off
the monies which for the time being shall be due on the
security of these presents, or left a notice in writing to that
effect at the office of , in , and default shall have
been made in payment of such monies or some part thereof for the space of six calendar months, to be computed from the time of giving or leaving such notice, or unless and until some half-yearly payment of interest which shall become due on the security of these presents, or a part of some such half-yearly payment, shall have become in arrear for the space of three calendar months after the day on which the same shall become due: Provided Also, and it
.reversionary Interest In
Purchaser not to be bound to see that events have happened.
Mortgagee's receipts to be discharges.
Trusts of the purchase-money.
is hereby agreed and declared, that, upon any sale purporting to be made in pursuance of the aforesaid power in that behalf, the purchaser or purchasers thereat shall not be bound to see or inquire whether either of the cases mentioned in the clause or provision lastly hereinbefore contained has happened, or whether any money remains due on the security of these presents, or otherwise as to the propriety or regularity of such sale; and, notwithstanding any impropriety or irregularity whatsoever in any such sale, the same shall, as far as regards the safety and protection of the purchaser or purchasers thereat, be deemed and taken to be within the aforesaid power in that behalf, and be valid and effectual accordingly, and the remedy of the said A. B., his executors, administrators, or assigns, in respect of any breach of the clause or provision lastly hereinbefore contained, shall be in damages only: And It Is Hereby also agreed and declared, that, upon any such sale as aforesaid, the receipt or receipts in WTiting of the said C. D., his executors, administrators, or assigns, for the purchase-money of the premises to be sold, shall be an effectual discharge or effectual discharges to the purchaser or purchasers for the money therein respectively expressed to be received, and that such purchaser or pin-chasers, after payment of his or their purchase-money, shall not be concerned to see to the application of such money, or be answerable for any loss, mis-application, or non-application thereof: And It Is Hereby further agreed and declared, that the said C. D., his executors, administrators, and assigns, shall hold all and singular the monies which shall arise from any sale which shall be made as aforesaid upon the trusts following, (that is to say), upon trust, in the first place, by, with, or out of the same monies to reimburse himself or themselves, or pay or discharge all the costs and expenses attending such sale or sales, or otherwise to be incurred in or about the exercise of the said power of sale, or in anywise relating thereto; and in the next place, upon trust to apply such monies in or towards satisfaction of all and singular the monies which for the time being shall be due on the security of these presents, and then upon trust to pay the surplus (if any) of the monies to
arise from such sale or sales as aforesaid unto the said Reversionary A. B., his executors, administrators, or assigns, for his and ttock.
their proper use and benefit: And It Is Hereby also po^er of sale
agreed and declared, that the aforesaid power of sale shall mav,b? exet'
, . ~ cised by any
or may be exercised by any person or persons who for the person capable time being shall be entitled to give a discharge for the "eipTfofthe6" monies which for the time being shall be due on the money, security of these presents: Provided Always, and it is Mortgagee not hereby agreed and declared, that the said C. D., his ^for'""". executors, administrators, or assigns, shall not be answer- luntary losses, able or accountable for any involuntary losses which may happen in or about the execution of the aforesaid power or trusts, or any of them: Provided Also, and it is Power of sale hereby lastly agreed and declared, that the aforesaid power rig^"^^^ of sale or anything herein contained shall not in anywise closureprejudice or affect the right of the said C. D., his executors, administrators, or assigns, to foreclose the equity of redemption of the premises aforesaid (e). In Witness &c.
(e) A mortgage of this kind should always contain a power of sale, for there is no other convenient mode of turning the security to account before the reversionary interest has fallen into possession. In case of an application to a court of equity, the remedy granted, it seems, would be a sale and not a foreclosure; but it may be prudent to retain the provision as to foreclosure. (How v. Figures, 1 Ch. Rep. 33; 15 Vin. 475).
POLICY OF AS-
ASSIGNMENT of a Policy of Assurance by way of Mortgage, for securing a Sum Already Due and Future Advances (a).
THIS INDENTURE, made &c Between A. B., of &c, [mortgagor], of the one part; and C. D., of &c,
Security for fu-
Payment by an
(«) It should be observed, that the precedent in the text is not of a mortgage for an account-current, like Precedents LVI. and LXIV.; it merely contemplates future advances by the mortgagee. The frame of the draft too is rather peculiar; for it commences with a covenant for the payment of the principal monies and interest, and then contains an assignment of the policy as a further security. There is no proviso for redemption, but in lieu thereof trusts are declared which render the policy an available security for the mortgagee. There is, however, no reason why a security on a policy of assurance should not be made in the shape of a regular mortgage with a proviso for redemption; (sec the last Precedent); which would raise by implication the same trusts of the monies payable under the policy, as are expressly declared in the form in the text. A power of sale, (which may be adapted from the form in the last precedent), should be contained in every security on a policy of assurance, for, with the exception of any bonus which may be declared, a sale is the only way in which a policy can be made available in the lifetime of the assured. It is not unusual to introduce into the trusts of the purchase-money some words which may render them applicable to the monies to become payable under the policy itself. If there be a proviso for redemption this is unnecessary; but if the draft be framed after the form in the text, it would, of course, be needful to adopt this course, in order to obviate the necessity of declaring the same trusts twice over. Of course, the monies to become payable under the policy itself should not be made applicable to defray the costs of a sale.
Some of the principal points in the law respecting policies of assurance are noticed supra, pp. 90, 91, and p. 374, n. (d). It is to be observed, however, that although, if a creditor insure his debtor's life, and the debt is paid by the executors, the creditor cannot recover against the assurance office; ( Godsal l v. Boldero, 9 East, 72 ); yet the reason of this is, because the contract with the office is for an indemnity against loss, and if there be no loss there can be no indemnity. And, therefore, the converse of the decision in Godsal l v. Boldero, does not appear