FURTHER CHARGE. such survivor, their or his assigns, interest after the rate £ and £31. per cent. Reduced Bank Annuities, Power of sale and provisions in respect of the original mortgage to apply to the fresh advance. FURTHER calling in or compelling payment of the said sum of £2,000 until the day of, and for restricting the said A. B., his heirs, executors, administrators, or assigns, from paying off or compelling the said C. D. and E. F., their executors, administrators, or assigns, to receive payment of the said principal sum of £2,000 until the said day of shall respectively extend and be considered to apply to the principal monies and interest intended to be secured by this present indenture, in the same manner as if the same several provisions were herein repeated and set forth with respect to the said sum of £500 and the interest thereof; and further, that the said C. D. and E. F., their executors, administrators, and assigns, shall have such and the same power of distress for securing or compelling payment of the interest to become due for the said sum of £500, as by the within-written indenture is given or provided for enabling the said C. D. and E. F., their executors, administrators, or assigns, to raise or compel payment of the interest on the said sum of £2,000; and further, that the power of sale in the within-written indenture contained for better securing the payment of the said sum of £2,000 and interest, and all trusts and provisions in relation thereto, shall extend and be applicable so as to be a further security for the said sum of £500 and interest, as well as if the said sum of £500 had formed part of the principal money secured by the within-written indenture (b). IN WITNESS &c. (b) It should be observed, that there are few mortgages to which all the provisions in this last clause will be applicable. LXXII. TRANSFER of MORTGAGE of FREEHOLDS (a). TRANSFER OF FREEHOLDS. THIS INDENTURE, made &c., BETWEEN A. B., of &c., Parties. [mortgagee], of the first part; C. D., of &c., [mortgagor], (a) The law with respect to transfers of mortgages will be found ante, Vol. I. Art. MORTGAGES; and in Coote on Mortgages, Book II. Ch. 19, 2nd edit. The necessary parties to a transfer are the mortgagee and the assignee; but the mortgagor, or, if he be dead, his personal representatives, should always, if possible, be parties to acknowledge the existing amount of the mortgage debt. For the transferee of a mortgage is subject to all the equities and settlements of account between the mortgagor and the mortgagee. (Earl of Macclesfield v. Fitton, 1 Vern. 169; 1 Ch. Ca. 68; Matthews v. Wallwyn, 4 Ves. 118; Williams v. Sorrell, Id. 389; Bradwell v. Catchpole, 3 Swanst. 79). Thus, if before the transfer, or before notice of it has been given to the mortgagor, he pays the whole or any part of the debt to the mortgagee, the transferee can recover against the mortgagor only the amount actually due. (Williams v. Sorrell, ubi supra; Chambers v. Goldwin, 9 Ves. 234; Norish v. Marshall, 5 Madd. 475). It would of course be sufficient for the above purposes to inquire of the mortgagor what is the amount of the mortgage debt, and to give him notice of the transfer; but as the evidence of the acknowledgment and notice is best preserved by his executing the transfer, it is the almost invariable practice to make him a party to it. Law relating to transfers of mortgages. fers. There are two methods in use of preparing transfers. The precedent First method of in the text is an example of the first, which is used when the mortgagor effecting transcan be made a party, and when there is no reason to suppose that there have been subsequent charges or dealings with the equity of redemption. In this method, the first witnessing part is an assignment of the mortgage debt; the second a conveyance by the mortgagee and mortgagor of the lands discharged of the old mortgage, but subject to a new proviso for redemption as in an original mortgage. The covenants for payment and title, powers, and provisces, follow exactly as in an original mortgage. A transfer after this fashion is, in fact, a new mortgage, and gives the transferee all the rights of an original mortgagee; he has his own covenants to sue upon, and his own power of sale and other powers to exercise without being hampered as to any questions respecting the benefit of such covenants and powers passing to him as transferee. The assign TRANSFER OF FREHOLDS. Recital of mortgage. Stamp duty on transfer. Second method of effecting transfers. Plan to be pur sued on transfer after death of mortgagor. of the second part; and E. F., of &c., [transferee], of the third part: WHEREAS, by an indenture of release bearing ment of the mortgage debt is of value only as shewing the intention that it shall be kept on foot as a protection against any mesne incumbrances which may have been created; the transferee having his own covenant of course never sues in the name of the mortgagee on the original covenant. Hence it is the practice of some gentlemen, in transfers of this kind, not to assign the mortgage debt, but merely to add to the habendum of the lands some words to the following effect: : "freed and discharged from the said principal sum of £ and all interest for the same, (except so far as that the same may be deemed to be subsisting and kept on foot, for the benefit of the said [mortgagee], his executors, administrators, and assigns, as against subsequent or mesne incumbrances or estates (if any), upon or in the said hereditaments and premises, or any of them), but subject nevertheless to the proviso for redemption hereinafter contained." The employment of this plan shortens the draft, and there seems no other objection to it than that it is unusual. It should be observed, that many persons have considered that this method of taking transfers with new proviso for redemption and a new covenant for payment, converts the proposed transfer into an original mortgage, liable to the payment of a fresh ad valorem stamp-duty. But the point is not generally deemed of any consequence by conveyancers, nor is the practice affected by it. (See ante, Vol. I., OF STAMPS ON ASSURANCES). The second method of effecting transfers is used either when the mortgagor cannot be made a party, or when, although a party, he has charged or limited the equity of redemption. By this method, (of which the next precedent is an example), the assignment of the mortgage debt is made as in the first method, but the conveyance of the lands is by the mortgagee alone, and is made subject to the existing equity of redemption. The draft contains neither covenants nor powers, except the mortgagee's covenant against incumbrances; for if the mortgagor be not a party, of course there can be none; and even if he be a party, powers would be futile as against the subsequent incumbrancers, and covenants for title of little value. There is no objection, however, to arming the transferee with an original covenant for payment of the mortgage money and interest, although such a course is not very usual. If the mortgagor be dead before the transfer, the first method cannot be adopted unless his heir or devisee be a party as well as his personal representatives. The second method can be used independently of the heir or devisee, and whether the personal representatives be or be not date the day of, grounded on a lease for a year, and made, or expressed to be made, between the said C. D. of the one part, and the said A. B. of the other part, in consideration of the sum of £1,000 to the said C. D. paid by the said A. B., the said C. D. did grant and release unto the said A. B. ALL THAT &c., [parcels] (b), with their parties. If, however, they be not parties, the precautions previously pointed out as to inquiry and notice must be observed. It should be observed, that the preceding observations as to the methods of effecting transfers are applicable chiefly to the cases of leaseholds and freeholds, and but partially to that of copyholds. Precedents of transfers of mortgages of copyholds will be found below. There is no precedent in the text of a transfer of mortgage of leaseholds, but the shape of such a transfer is exactly the same as that of a corresponding transfer of freeholds, and may be easily framed from the precedents in the text and the foregoing precedents of mortgages of leaseholds. (See, too, infra, Precedent LXXVII.). TRANSFER OF Transfers of mortgages of leaseholds and copyholds. It is the practice of some draftsmen, if there be a power of sale in the Erroneous mortgage, to assign it by name on the transfer. But this course is totally practice of assigning the wrong, for the power of sale, if properly framed, passes to the "assigns" power of sale. of the mortgagee, by virtue of their character of assigns, and nothing which the mortgagee can do can give them the right to exercise the power, unless they take it by virtue of the designation in the original mortgage. It is true, that if the mortgagor be a party, he may give the transferee the right, independently of the original deed, to exercise the power; but then such an exercise would be effectual only against the mortgagor himself, and not against any subsequent incumbrancers. And if the mortgagor be so situated as to be capable of extending the provisions of the old power of sale, he will be competent to give a new power which will be much more convenient and effectual. It is to be observed, that the practice of taking transfers of mortgages by indorsement on the mortgage-deed is extremely desirable, and is always to be followed unless the residence of the mortgagor or mortgagee, or some other circumstance, renders it inconvenient to indorse the deed which is to be executed in the existing security. For, by taking the transfer by indorsement, the recital of the mortgage, and the setting forth the parcels, is avoided, and the reference to the powers and covenants is made most conveniently, and without any occasion for specifically noticing them in the transfer. There is no precedent in the text of a transfer by indorsement; but the shape of such a transfer differs in no respect from that of another transfer, except by omitting the recital of the mortgage, and referring to the within-written indenture and the withinnamed or within-mentioned persons or sums. (See the mode of reference in indorsed deeds, supra, Precedent, LXXI., p. 639). Advantage of taking transfers by indorsement. (b) In transfers of mortgages the parcels are generally set forth in the Locus of parcels |