APPOINTMENT OF RECEIVER. Declaration of trusts of the rents and profits. -to pay outgoings. pay to him: AND IT IS HEREBY agreed and declared between and by the said parties to these presents, that all and every the rents and profits which shall be received by the said E. F. shall be held by him upon and for the trusts, intents, and purposes hereinafter mentioned; (that is to say), upon trust that he the said E. F. shall and do by and out of the same from time to time, IN THE FIRST PLACE, pay all taxes, rates, assessments, and impositions whatsoever now or hereafter to be taxed, charged, assessed, or imposed upon or in respect of the said premises, and which the respective tenants or occupiers thereof shall not be liable to pay (d); AND IN THE NEXT PLACE deduct and retain for his own use so much and such sums of money, not exceeding after the rate of £5 for every £100, as he shall reasonably deserve as a compensation and satisfaction for his cares, pains, troubles, and expenses in recovering and paying the said rents and profits in manner and for the -and pay in purposes herein mentioned: AND, IN THE NEXT PLACE, pay to the said C. D., his executors, administrators, and assigns, by two equal half-yearly payments, on the -and retain a per-centage as salary. terest on mort gage. -and pay surplus to mortgagor. Covenant by the receiver for the duties. Power for the receiver to repair and insure. and the day of day of in every year, interest for the said sum of £, or for so much thereof as for the time being shall remain unpaid: AND, IN THE Last place, pay the clear residue and surplus which shall remain of the said rents and profits, after answering the several purposes aforesaid unto the said A. B., his executors, administrators, and assigns; AND THE SAID E. F. doth hereby for himself, his heirs, executors, and administrators, covenant with the said C. D., his executors, administrators, and assigns, and also with the said A. B., his heirs and assigns, in manner following: (that is to say), that he the said E. F. shall and will from time to time, so long as he shall be the collector or receiver of the rents and profits of the said premises, use his utmost endeavours to collect and (d) It may frequently be expedient to provide, that the receiver shall pay such sums as shall be necessary for keeping the premises properly repaired and adequately insured against loss by fire. As to the power of a receiver appointed by the Court of Chancery, to expend money in repairs, see Attorney-General v. Vigors, 11 Ves. 563; Waters v. Taylor, 15 Ves. 26. OF RECEIVER. -not to ob receive the same, and shall and will from time to time and APPOINTMENT at all times truly and punctually pay or cause to be paid, in manner and to and for the ends, intents, and purposes aforesaid, all such monies as shall from time to time be collected or received by him the said E. F, by virtue of or under the aforesaid powers or authorities: AND THE SAID A. B. Covenants by doth hereby for himself, his heirs, executors, administra- mortgagor. tors, and assigns, covenant with the said C. D., his executors, administrators, and assigns, in manner following; (that is to say), that he the said A. B. shall not nor will, without the consent of the said E. F., his executors, ad- struct receiver. ministrators, or assigns, first had and obtained in writing, under his or their hand or hands, revoke (e) the powers or authorities hereby given to the said E. F., or any of them, or do or suffer to be done any act, matter, or thing, whereby the said powers or authorities hereby given, or any of them, may or shall become void or of no effect, or hinder or obstruct him the said E. F., or any future receiver to be appointed as hereinafter is mentioned, in recovering, collecting, or receiving all or any of the rents and profits of the said premises upon and for the trusts, intents, and purposes aforesaid, during such time as the said sum of £——, or any part thereof, shall remain on the security of the said premises, or any of them: AND FURTHER, THAT, in case the said E. F. shall die, or by any disability be disqualified or rendered incapable to collect or receive the said rents and profits, or shall refuse or neglect to proceed therein in manner aforesaid, or shall otherwise misbehave himself in the trusts hereby in him reposed, whilst the said sum of £- or any interest for the same, or any part thereof respectively shall remain and continue on the aforesaid security, then and in any of the said cases, except the death of the said E. F., he the said A. B., his heirs or assigns, shall and will join with the said C. D., his executors, administrators, or assigns, in removing the said (e) A power of attorney executed for a valuable consideration cannot be revoked without the consent of the person for whose benefit it was granted. (Odes v. Woodward, 2 Ld. Raym. 849; Walsh v. Whitcomb, 2 Esp. 565; Bromley v. Holland, 7 Ves. 28; and see supra, p. 384, n. (f)). But the covenant in the text is usually inserted. and to remove him and appoint a new one if required. Power of attor ney for valuable consideration not revocable. OF RECEIVER. -and that on neglect by mortgagor, mortgagee may appoint a new receiver. APPOINTMENT E. F. from the said employment, and shall and will in any of the said cases duly constitute, appoint, and authorize such other fit person or persons in the place or stead of the said E. F., as the said C. D., his executors, administrators, and assigns shall from time to time nominate, to collect, receive, and pay the said rents and profits of the said premises upon and for the trusts, intents, and purposes hereinafter mentioned, and so from time to time when and so often as the like case shall happen, until the said sum of £, and all interest for the same, shall be paid to the said C. D.; AND THAT in case the said A. B., his heirs or assigns, shall refuse or neglect so to do for the space of three calendar months next after the death, incapability, or misbehaviour of him the said E. F., or any other receiver so to be constituted as aforesaid, then and in such case, and so from time to time as often as the like case shall happen, it shall be lawful for the said C. D., his executors, administrators, and assigns, if they shall think fit, without the consent or concurrence of the said A. B., his heirs or assigns, to constitute or appoint some fit person to collect, receive, and pay the said rents and profits upon the trusts and for the intents and purposes aforesaid, with such reasonable salary for his care, pains, trouble, and expenses as the said C. D. shall think fit, not exceeding £5 for every £100 to be received: PROVIDED ALWAYS, and it is hereby agreed and declared, that the said C. D., his executors, administrators, and assigns, shall not in anywise be charged with, or answerable for, any loss, misapplication, or nonapplication of the rents and profits of the said premises, or any part thereof, by reason of any default, neglect, or breach of trust of or in the said E. F., or any future collector or receiver to be appointed as aforesaid, but that such loss, misapplication, or non-application, and every receiver's salary, shall be wholly borne and paid by the said A.B., his heirs, executors, or administrators (ƒ): PROdefault in pay- VIDED ALWAYS, and it is hereby lastly agreed and declared between and by the parties to these presents, that the said Mortgagee not acts of receiver. to be liable for Receiver not to act till after ment of in terest. Mortgagee not to be liable for (f) If this clause were not contained in the deed, there might be some doubt whether the mortgagee would not be liable for the receiver's E. F. or other the receiver or receivers so to be appointed as herein before is mentioned, shall not act or assist in the execution of the trusts and powers hereinbefore contained, unless and until some half-yearly payment of interest on the said sum of £- or some part thereof, shall be in arrear and unpaid for the space of one calendar month (g). IN WITNESS &c. THE SCHEDULE referred to in the above-written Indenture. 639 APPOINTMENT OF RECEIVER. LXXI. DEED of FURTHER CHARGE. FURTHER CHARGE. THIS INDENTURE, made &c., BETWEEN the within- Parties. named (a) A. B., [mortgagor], of the one part, and the within faults. defalcation or misapplication. Thus, where a trustee for the benefit of receiver's decreditors became bankrupt, having retained a sum of money belonging to the trust for three years unapplied, it was held, that the creditors and not the debtor should bear the loss. (Hutchinson v. Lord Massarene, 2 Ball & Beatt. 49). Sometimes it is provided, that the receiver shall not be liable for involuntary losses; (see the form, supra, p. 617); but it is considered, that, even in the absence of stipulation, a receiver will not be liable for losses which may occur in the proper discharge of his duty. (Knight v. Lord Plymouth, 3 Atk. 480; S. C. 1 Dick. 120). Of course, however, he will be liable for losses which may occur by means of his own conduct. (Wren v. Kirton, 11 Ves. 377; Salway v. Salway, 2 Russ. & My. 215. See, too, the cases of Macdonnell v. Harding, 7 Sim. 178; Clough v. Dixon, 8 Sim. 594). (g) This proviso will of course be omitted if it be intended that the receiver shall forthwith enter into the possession of the rents and profits. But the usual practice is to postpone his entering on his office till default has been made in payment of interest. (See supra, n. (a) ). (a) The precedent in the text is that of a draft intended to be indorsed on the mortgage deed, and, if circumstances will permit, deeds of further charge should always be so indorsed, in order to avoid the necessity of reciting the mortgage-deed. It sometimes, however, happens, that from the situation of the mortgagor's abode, to which the deed must be sent Liability of re ceiver for involuntary losses. Manner of preparing further charges. FURTHER Recital of state ---of agreement for further charge. Witnesseth. Covenant for payment of the fresh advance. named C. D. and E. F., [mortgagees], of the other part: WHEREAS the within-mentioned sum of £2,000 remains due and owing to the said C. D. and E. F. by the said A. B. upon the security of the within-written indenture, but all interest for the same has been paid up to the day of past: AND WHEREAS the said C. D. and E. F. have agreed, at the request of the said A. B., to advance and lend him the further sum of £500 out of monies belonging to them upon a joint account, on having the repayment of the said sum of £500, with interest for the same after the rate hereinafter mentioned, secured in manner hereinafter mentioned. NOW THIS INDENTURE WITNESSETH, that, in pursuance of the said agreement, and in consideration of the sum of £500 at or immediately &c., the receipt &c., (supra, p. 465), He 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 he the said A. B., his heirs, executors, or administrators, shall and will pay or cause to be paid unto the said C. D. and E. F., or the survivor of them, or the executors or administrators of such survivor, their or his assigns, the sum of £500, with interest for the same after the rate of £- per cent. per annum, on the day of next ensuing the date of these presents, without any deduction or abatement for any present or future taxes or impositions, or any other matter, cause, or thing whatsoever; and in case the said sum of £500 shall not be paid on the said day of, shall and will thenceforth, during the continuance of this present security, pay or cause to be paid unto the said C. D. and E. F., or the survivor of them, or the executors or administrators of for execution, or from other circumstances, it is not convenient to indorse the further charge on the original mortgage. In that case the deed of further charge should commence by reciting the mortgage in the usual way, (see infra, p. 644), setting out the parcels in the recital; and the subsequent parts of the instrument must refer to the recited deed, instead of to the within-written deed; "within mentioned" will become "said; " and the parties will be described in the usual manner. The draft will not in other respects differ from the indorsed deed, of which the precedent is given. |