44 & 45 deed, shall, by virtue of this Act, have the following powers,

Vict. c. 41, s. 19.

Powers incident to

estate or interest of mortgagee.

to the like extent as if they had been in terms conferred by
the mortgage deed, but not further (namely):

(i.) A power (u), when the mortgage money has become
due, to sell, or to concur with other
any
person in
selling, the mortgaged property, or any part thereof,
either subject to prior charges, or not, and either
together or in lots, by public auction or by private
contract, subject to such conditions respecting title,
or evidence of title, or other matter, as he (the mort-
gagee) thinks fit, with power to vary any contract
for sale, and to buy in at an auction, or to rescind
any contract for sale, and to re sell, without being
answerable for any loss occasioned thereby; and
(ii.) A power, at any time after the date of the mortgage
deed, to insure and keep insured against loss or
damage by fire any building, or any effects or
property of an insurable nature, whether affixed
to the freehold or not, being or forming part of
the mortgaged property, and the premiums paid
for any such insurance shall be a charge on the
mortgaged property, in addition to the mortgage
money, and with the same priority, and with in-
terest at the same rate, as the mortgage money;
and

(iii.) A power, when the mortgage money has become
due, to appoint a receiver of the income of the
mortgaged property, or of any part thereof; and
(iv.) A power, while the mortgagee is in possession, to
cut and sell timber and other trees ripe for
cutting, and not planted or left standing for
shelter or ornament, or to contract for any such
cutting and sale, to be completed within any time

(u) The power of sale here given is rather more favourable to the mortgagee than that commonly inserted in the mortgage deed, inasmuch as it gives him power to sell after three months' notice instead of

six, or if interest is in arrear for two months instead of three. Compare the ordinary power of sale in Prec. XLI., p. 78, with s. 20 of this Act; see Warner v. Jacob, L. R. 20 Ch. D. 220.

not exceeding twelve months from the making of 44 & 45 the contract.

(2.) The provisions of this Act relating to the foregoing powers, comprised either in this section, or in any subsequent section regulating the exercise of those powers, may be varied or extended by the mortgage deed, and, as so varied or extended, shall, as far as may be, operate in the like manner, and with all the like incidents, effects, and consequences, as if such variations or extensions were contained in this Act.

(3.) This section applies only if and as far as a contrary intention is not expressed in the mortgage deed, and shall have effect subject to the terms of the mortgage deed and to the provisions therein contained.

(4.) This section applies only where the mortgage deed is executed after the commencement of this Act.

Vict. c. 41, ss. 19-21.

20. A mortgagee shall not exercise the power of sale Regulaconferred by this Act (x) unless and until

tion of exercise of

sale.

(i.) Notice requiring payment of the mortgage money power of
has been served on the mortgagor or one of several
mortgagors, and default has been made in payment
of the mortgage money, or of part thereof, for three
months after such service; or

(ii.) Some interest under the mortgage is in arrear and
unpaid for two months after becoming due; or
(iii.) There has been a breach of some provision contained
in the mortgage deed or in this Act, and on the
part of the mortgagor, or of some person concur-
ring in making the mortgage, to be observed or
performed, other than and besides a covenant
for payment of the mortgage money or interest
thereon.

ance,

21.—(1.) A mortgagee exercising the power of sale Conveyconferred by this Act shall have power, by deed, to convey receipt, &c. the property sold, for such estate and interest therein as on sale. is the subject of the mortgage, freed from all estates, in

(x) See p. 78.

Vict. c. 41,

s. 21.

44 & 45 terests, and rights to which the mortgage has priority, but subject to all estates, interests, and rights which have priority to the mortgage; except that, in the case of copyhold or customary land, the legal right to admittance shall not pass by a deed under this section, unless the deed is sufficient otherwise by law, or is sufficient by custom, in that behalf.

(2.) Where a conveyance is made in professed exercise of the power of sale conferred by this Act, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorize the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised; but any person damnified by an unauthorized, or improper, or irregular exercise of the power shall have his remedy in damages against the person exercising the power (y).

(3.) The money which is received by the mortgagee, arising from the sale, after discharge of prior incumbrances to which the sale is not made subject, if any, or after payment into Court under this Act of a sum to meet any prior incumbrance, shall be held by him in trust to be applied by him, first, in payment of all costs, charges, and expenses, properly incurred by him, as incident to the sale or any attempted sale, or otherwise; and secondly, in discharge of the mortgage money, interest, and costs, and other money, if any, due under the mortgage; and the residue of the money so received shall be paid to the person entitled to the mortgaged property, or authorized to give receipts for the proceeds of the sale thereof (2).

(4.) The power of sale conferred by this Act may be exercised by any person for the time being entitled to receive and give a discharge for the mortgage money (z).

(5.) The power of sale conferred by this Act shall not affect the right of foreclosure.

(6.) The mortgagee, his executors, administrators, or assigns, shall not be answerable for any involuntary loss happening in or about the exercise or execution of the (*) See p. 79.

(y) See p. 79.

power of sale conferred by this Act or of any trust connected therewith (a).

(7.) At any time after the power of sale conferred by this Act has become exerciseable, the person entitled to exercise the same may demand and recover from any person, other than a person having in the mortgaged property an estate, interest, or right in priority to the mortgage, all the deeds and documents relating to the property, or to the title thereto, which a purchaser under the power of sale would be entitled to demand and recover from him.

44 & 45 Vict. c. 41,

ss. 21-23.

gagee's

&c.

22.—(1.) The receipt in writing of a mortgagee (b) shall Mortbe a sufficient discharge for any money arising under the receipts, power of sale conferred by this Act, or for any money discharges, or securities comprised in his mortgage, or arising thereunder; and a person paying or transferring the same to the mortgagee shall not be concerned to inquire whether any money remains due under the mortgage.

(2.) Money received by a mortgagee under his mortgage or from the proceeds of securities comprised in his mortgage shall be applied in like manner as in this Act directed respecting money received by him arising from a sale under the power of sale conferred by this Act; but with this variation, that the costs, charges, and expenses payable shall include the costs, charges, and expenses properly incurred of recovering and receiving the money or securities, and of conversion of securities into money, instead of those incident to sale.

money.

23.-(1.) The amount of an insurance effected by a Amount and applimortgagee against loss or damage by fire under the power cation of in that behalf conferred by this Act shall not exceed the insurance amount specified in the mortgage deed, or, if no amount is therein specified, then shall not exceed two third parts of the amount that would be required, in case of total destruction, to restore the property insured.

(a) See p. 80,

(b) See p. 79.

T

44 & 45

(2.) An insurance shall not, under the power conferred 88. 23, 24. by this Act, be effected by a mortgagee in any of the

Vict. c. 41,

ment,

powers,

following cases (namely):

(i.) Where there is a declaration in the mortgage deed that no insurance is required:

(ii.) Where an insurance is kept up by or on behalf of the mortgagor in accordance with the mortgage

deed:

(iii.) Where the mortgage deed contains no stipulation respecting insurance, and an insurance is kept up by or on behalf of the mortgagor, to the amount in which the mortgagee is by this Act authorized to insure.

(3.) All money received on an insurance effected under the mortgage deed or under this Act shall, if the mortgagee so requires, be applied by the mortgagor in making good the loss or damage in respect of which the money is received.

(4.) Without prejudice to any obligation to the contrary imposed by law, or by special contract, a mortgagee may require that all money received on an insurance be applied in or towards discharge of the money due under his mortgage (c).

Appoint. 24.-(1.) A mortgagee entitled to appoint a receiver under the power in that behalf conferred by this Act shall remunera not appoint a receiver until he has become entitled to tion, and exercise the power of sale conferred by this Act, but may then, by writing under his hand, appoint such person as he thinks fit to be receiver.

duties of receiver.

(2.) The receiver shall be deemed to be the agent of the mortgagor; and the mortgagor shall be solely responsible for the receiver's acts or defaults, unless the mortgage deed otherwise provides.

(3.) The receiver shall have power to demand and recover all the income of the property of which he is appointed receiver, by action, distress, or otherwise, in the

(c) See note (i), p. 90,