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TRANSFER of MORTGAGE of FREEHOLDS, the TRANSPER,
THIS INDENTURE, made &c. BETWEEN A. B., of Parties. &c., [mortgagee], of the first part; C. D., of &c., [mortgagor), of the second part; and E. F., of &c., (transferee), of the third part: [Recites mortgage, see supra, p. 644]: Recital of mortAnd whereas, by an indenture bearing date the — day gage.
charge. (a) The precedent in the text is a very unusual form of transfer when Remarks on a further sum is advanced; for, in such case, the original debt and the the precedent further advance are generally amalgamated, as in the next precedent,
ve in the text. and the transfer is made with a new proviso and covenants, as in an original mortgage. (See the observations on the first method of transfer, supra, p. 643, n. (a), and see too the next precedent). In the case, however, to which the precedent in the text was adapted, mortgages had been made of the equity of redemption, which compelled the transfer of the existing mortgage to be made subject to the existing equity of redemption, (see supra, p. 644, n.). The further advance would of course be postponed to the mesne incumbrances.
The precedent in the text may be easily adapted to the case of a common transfer, subject to the existing equity of redemption, by detaching the parts which relate to the further advance.
It is to be observed, that interest converted into principal must be As to conrerconsidered in the light of a further advance, and clearly cannot be so sion of interest converted without the concurrence of the mortgagor. (Earl of Maccles
Mode into principal. field v. Fitton, 1 Vern. 169; 1 Cha. Ca. 68; Ashenhurst v. James, 3 Atk. 271; Anon. 2 Cha. Ca. 258, overruling some earlier cases). And even with the concurrence of the mortgagor, interest cannot be converted into principal as against subsequent incumbrancers. (Digby v. Craggs, Amb. 612; S. C. 2 Eden, 200). But it seems that the rule does not apply to the conversion of costs and expenses into principal. (Godfrey v. Watson, 3 Atk. 518; Manlove v. Bale, 2 Vern. 84). See more on the subject of interest, supra, p. 510, n. (f).
TRANSFER, of — , indorsed on the said indenture of the — day of THER AD. —, 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 £500 to the said C. D. paid by the said A. B., the said C. D. did covenant with the said A. B., his executors, administrators, and assigns, that the said hereditaments comprised in the said indenture of the — day of — [the mortgage deed], should be charged with and be a security for the repayment as well of the said sum of £1,000 and interest as of the said sum of £500, with interest for the same, after the rate of £5 per cent. per annum ; and in the said indenture now in recital was contained a covenant by the said C. D. with
the said A. B., his executors and administrators, for pay-of the prin. ment of the said sum of £500 and interest: AND WHEREAS cipal sums be the said sume of f10
the said sums of £1,000 and £500 (making together the ing due, and interest paid. sum of £1,500) are still due and owing upon the respec
tive securities aforesaid, but all interest on the same re
spectively has been paid up to the day of the date of these of agreement presents (6): AND WHEREAS the said E. F. has agreed, for transfer.
As to the date of transfers of mortgages.
(6) When the transfer is made, subject to the existing equity of redemption, the recital in the text, as to the payment of interest, will serve if it bear date on one of the half-yearly days of payment of interest. And it is much more convenient, that the transfer should bear such date, for otherwise the mortgagee must be paid the accrued interest, either by the mortgagor or the transferee. If the mortgagor pay him, the old covenant for half-yearly payment of interest will cease to be available as the future half-yearly payments must be computed from the date of the transfer, and the provisions of the power of sale, and any other provisions which relate to the days of payment of interest, will cease to be applicable. If the transferee pay the accrued interest, he advances it till the next half-yearly day of payment, without receiving any interest for that advance, and of course he is seldom willing to do so. Perhaps the best course is, for the mortgagor to pay the interest up to the day of transfer, and to covenant with the transferee for the payment of the proportionate interest from the day of the transfer up to the next halfyearly day of payment, and for half-yearly payments thenceforward. (See the covenant for payment of interest, infra). It can hardly be thought, that this contravenes the rule as to interest stated supra, p. 510, n. (f).
When the transfer is made with a new proviso for redemption, and new covenants and a new power of sale, the date of the transfer is immaterial. at the request of the said C. D., to pay to the said TRANSFER, A. B. the sum of £1,500, upon having a transfer, in manner hereinafter mentioned, of the said mortgage-debts of £1,000 and £500 and interest, and the securities for the same respectively; and on the treaty for the said advance it was agreed that such covenants and agreements should be entered into as are hereinafter contained, for the payment of the interest to grow due for the said sum of £1,500: AND —and further WHEREAS the said E. F. has also agreed to advance to the adr said C. D. the further sum of £200 upon having the repay. ment of the same, with interest after the rate hereinafter mentioned, secured in manner hereinafter mentioned: NOW Witnesseth. THIS INDENTURE WITNESSETH, that, in pursuance of the said agreements, and in consideration of the sum Cousideration. of £1,500, at or immediately before the sealing and delivery of these presents to the said A. B. paid by the said E.F., at the request and by the direction of the said C. D. (testified by his being a party to and executing these presents), (the Receipt. receipt of which said sum of £1,500 he the said A. B. doth hereby acknowledge, and of and from the same, and every part thereof, doth acquit, release, and discharge the said E. F., his heirs, executors, administrators, and assigns for ever by these presents), the said A. B., at the request Assignment. and by the direction of the said C. D., (testified as aforesaid), hath assigned and by these presents doth assign unto the said E. F., his executors, administrators, and assigns, ALL THOSE the said principal sums of £1,000 and £500 – of the mort. respectively due and owing to the said A. B. on his said gage debts. securities as hereinbefore is mentioned, and the interest henceforth to become due for the same respectively, and the full benefit of the covenants entered into by the said C. D. with the said A. B. in and by the said indentures of the day of — and the day of — respectively, for the payment of the same principal monies and interest respectively, and of all other securities for the same: AND and ALL THE ESTATE, right, title, interest, claim, and demand estate. whatsoever, both at law and in equity, of him the said A. B. of, in, to, out of, or upon the said premises, or any of them, or any part thereof, TOGETHER with full power Power of attorand authority to ask, demand, sue for, recover, and receive, ney.
TRANSPER, and give effectual receipts and discharges for the said sums
of £1,000 and £500 respectively, and every part thereof respectively, and the interest for the same respectively, in
the name or names of the said A. B., his executors or Habendum.
administrators (c), TO HAVE, HOLD, RECEIVE, AND TAKE the said sums of £1,000 and £500, and the interest henceforth to become due for the same respectively, and all and singular other the premises hereinbefore assigned, or expressed and intended so to be, unto the said E. F., his
executors, administrators, and assigns, to and for his and Witnesseth, their own use and benefit: AND THIS INDENTURE secondly.
ALSO WITNESSETH, that, in further pursuance of the Conveyance.
said agreements and for the considerations aforesaid, the said A. B., at the request and by the direction of the said C. D. (testified as hereinbefore is mentioned), hath released, and by these presents doth release, unto the said E. F., (in his actual possession now being, by virtue of a bargain and sale thereof to him made by the said A. B.,
in consideration &c., supra, p. 198), and his heirs and of the mort- assigns, ALL AND SINGULAR the said lands, hereditaments, gaged premises. and premises by the said indenture of the day of —
granted and released, or expressed and intended so to be, Habendum. and all the estate &c., TO HAVE AND TO HOLD the said
lands and hereditaments and all and singular other the premises hereby released, or expressed and intended so to be, unto the said E. F., his heirs and assigns, to the use of the said E. F., his heirs and assigns for ever, subject nevertheless to the right or equity of redemption subsisting in the same premises under or by virtue of the said inden
tures of the day of — and the day of — Covenant by respectively: AND THE SAID A. B. doth hereby, for the mortgagee himself, his heirs, executors, and administrators, covenant against incum brances. with the said E. F., his heirs, executors, administrators,
and assigns respectively, that he the said A. B. hath not at any time heretofore made, done, committed, or executed, or knowingly or willingly permitted or suffered, or been party or privy to, any act, deed, matter, or thing whatsoever, whereby or by reason or means whereof he
(c) See supra, p. 647, note (c).
the said A. B. is in anywise prevented or hindered from TRANSFER, assigning the said sums of £1,000, and £500, and the interest to become due for the same respectively, or any part thereof respectively, unto the said E. F., his executors, administrators, and assigns, in manner aforesaid, according to the true intent and meaning of these presents, or whereby or by reason or means whereof the said hereditaments and premises hereinbefore released, or expressed and intended so to be, or any of them, or any part thereof, are, is, can, shall, or may be impeached, charged, affected, or incumbered in title, estate, or otherwise howsoever: AND THE Covenant by SAID C. D. doth hereby for himself, his heirs, executors,
are the mortgagor
" for payment of and administrators, covenant with the said E. F., his execu- interest on the
original mort. tors and administrators, that he the said C. D., his heirs, gases executors, or administrators, shall and will, until full payment of the said principal sums of £1,000 and £500, or the foreclosure of the said mortgaged premises, pay or cause to be paid unto the said E. F., his executors, administrators, or assigns, the interest henceforth to become due for the said sums of £1,000 and £500 after the rate aforesaid, by equal half-yearly payments, on the day of — , which will be in the present year — , and on the day of —- and the day of — in every subsequent year; and that in case the said principal sums of £1,000 and £500 shall be paid to the said E. F., his executors, administrators, or assigns, on any other day than one of the said half-yearly days of payment of interest, a proportionate payment of such interest shall be made at the time of the payment of the principal money for the time which shall have elapsed of the then current halfyear (d): AND THIS INDENTURE ALSO WIT- Witnesseth,
the said aree NESSETH, that, in further pursuance of the said agree
ther advance, ments, and in consideration (e) of the sum of £200 at or and covenant
to repay the immediately before the sealing and delivery of these pre
same, with in
(d) See supra, p. 652, n. (6). It should be remembered that the rate of interest cannot be increased as against mesne incumbrancers on the equity of redemption.
(e) It will be observed, that in this precedent the rule laid down, On stating the