Persons entitled to exercise power of sale liable for losses. Proviso excluding ss. 17 and 18 of the Conveyancing Act, 1881. any of sale hereinbefore contained and all other powers may be exercised by any person or persons for the time being entitled to receive and give a discharge for the moneys for the time being owing on the security of these presents, not to be And he or they shall not be liable for losses which may arise in the exercise of the aforesaid powers and trusts or any of them unless the same shall arise through his or their own wilful neglect or default. PROVIDED ALWAYS and it is hereby agreed and declared that the provisions of the 17th section of the Conveyancing and Law of Property Act, 1881, and of the 18th section sub-s. 1 of the same Act shall not apply to this mortgage (y) but it shall be lawful for the said A. his heirs and assigns provided he or they shall be in possession of the said hereditaments and premises hereby mortgaged or in receipt of the rents and profits thereof from time to time to demise the said hereditaments and premises or any part or parts thereof for any term of years not exceeding twenty-one years to take effect in possession at the best yearly rent to be incident to the reversion that can be reasonably obtained without taking anything in the nature of a fine or premium and so that there be contained in every such lease a condition of re-entry for non-payment of rent and so that the lessee execute a counterpart of such lease and thereby covenant for the due payment of the rent (z). IN WITNESS &c. (y) Sect. 17 restricts consolidation of mortgages. Sect. 18 confers upon the mortgagor and mortgagee when respectively in possession the power of making leases. The power thereby conferred on the mortgagor is somewhat larger than that commonly inserted in mortgages, and it may therefore be deemed desirable to exclude it, in which case a power to lease may be specially given to the mortgagor as above. (2) A covenant by the mortgagor to insure, see p. 89, may be inserted, if desired. The mortgagee has power under s. 19 of the Conveyancing Act, 1881, to insure, to appoint a receiver, and to cut timber, subject as therein provided. An attornment clause, as follows, is sometimes added, where the mortgagor remains in possession, but under the Bills of Sale Act, 41 & 42 Vict. c. 31, s. 6, this will have to be registered: "AND for the consideration aforesaid the said A. doth hereby attorn and become tenant to the said B. and C. their heirs and assigns of the said hereditaments and premises hereby mortgaged as tenant from year to year from the date of these presents at the yearly rent of £ payable XLII. MORTGAGE of FREEHOLDS to one person. SHORT FORM. THIS INDENTURE made the day of seisin of ment for loan. Between A. of &c. (mortgagor) of the one part and M. of &c. (mortgagee) of the other part, [WHEREAS the said A. is Recital of seised for an estate of inheritance in fee simple in posses- mortgagor. sion free from incumbrances of the freehold hereditaments hereinafter granted (a), AND WHEREAS the said A. has Agreeapplied to the said M. to lend him the sum of £which the said M. has agreed to do on having the repayment thereof with interest secured in manner hereinafter appearing, NOW THIS INDENTURE] WITNESSETH that [in pursuance of the said agreement and] in consideration of the sum of £- now paid by the said M. to the said A., The receipt whereof the said A. doth hereby acknowledge, He the said A. as beneficial owner doth hereby grant unto the said M. and his heirs ALL &c. Grant of (parcels), To HAVE AND TO HOLD the premises hereby granted UNTO AND TO THE USE of the said M. his heirs and assigns. PROVIDED ALWAYS that if the said A. his Proviso heirs executors administrators or assigns shall on the demption. (six months after the date of the day of mortgage) pay to the said M. or the persons claiming under him the sum of £- quarterly on the day of- of - with interest for the said attornment." As to the amount (a) This mortgage may be further G freeholds. for re Covenant by mortgagor for payment of princi pal, and interest. date of these presents then the said M. or the persons his heirs executors or administrators will on the said administrators will on the day of day of and the in every year pay interest at the rate or of £5 per cent. per annum on the said sum of £ Amount owing. Agreement for further loan. XLIII. DEED of FURTHER CHARGE by INDORSEMENT (a). day of THIS INDENTURE made the Between the within-named A. of the one part and the within-named M. of the other part, WHEREAS the withinmentioned sum of £1000 is still owing to the said M. on the security of the within-written Indenture together with interest from the day of last, AND WHEREAS the said A. has requested the said M. to lend him the further sum of £500 which the said M. has agreed to do on having the repayment thereof with interest secured in manner hereinafter appearing, NOW THIS INDENTURE WIT (a) If more convenient this deed may be made supplemental or annexed under s. 53 of the Con veyancing and Law of Property Act, 1881, see p. 297. day of — next (b) for pay NESSETH that in pursuance of the said agreement and in consideration of the sum of £500 now paid by the said M. to the said A., The receipt whereof the said A. doth hereby acknowledge, He the said A. doth hereby covenant Covenant with the said M. that he the said A. his heirs executors or ment of further administrators will on the loan, pay unto the said M. or the persons claiming under him the aforesaid sum of £500 with interest thereon at the rate of £5 per cent. per annum from the date of these presents: AND further that if the said principal sum of with £500 shall not be paid on the said day of then he the said A. his heirs executors or administrators will on the day of (b) and the day of interest. extend to loan. (b) in every year pay interest on the said sum of £500 or on so much thereof as shall for the time being remain owing until the whole of the said principal sum shall be fully paid and satisfied. AND IT IS HEREBY AGREED Security given by AND DECLARED that all and singular the land and here- the mortditaments comprised in the within-written Indenture shall gage to be charged with the payment to the said M. his executors further administrators and assigns of both the said principal sums of £1000 and £500 and the interest thereof respectively and shall not be redeemable until both the said principal sums and the interest thereof respectively shall be fully paid and satisfied, AND FURTHER that the power of sale and other powers and provisions contained in the withinwritten Indenture for securing payment of the said principal sum of £1000 and the interest thereof shall extend to the said further sum of £500 and the interest thereof for the purpose of securing and raising both the same sums and interest. IN WITNESS &c. (b) These should be the same days deed for payment of interest. as those named in the mortgage Will of Amount owing. XLIV. RECONVEYANCE of FREEHOLDS by EXECUTORS (c) of THIS INDENTURE made the day of duly proved in the day of without having Between B. of &c. and C. of &c. of the one part and the within-named A. (mortgagor) of the other part, WHEREAS mortgagee. the within-named M. (mortgagee) duly made and executed his last will dated &c. and thereby appointed the said B. Death and and C. and also D. executors thereof, AND WHEREAS the probate. said M. died on the revoked or altered his said will, which was on the day of Registry of the Probate Division of the High Court of Justice by the said B. and C. alone, the said D. having renounced probate thereof, AND WHEREAS the within-mentioned principal sum of £- is still owing on the security of the within-written Indenture but all interest thereon has been paid up to the date hereof, AND WHEREAS the said A. is desirous of paying off the said sum of £- -and of having the hereditaments comprised in the within-written Indenture reconveyed in manner hereinafter appearing, NOW THIS INDENTURE WITNESSETH that in consideration of the sum of £- now paid by the said A. to the said B. and C'., The receipt whereof the said B. and C. do hereby acknowledge, They the said B. and C. as personal representatives of the said M. deceased (d) in exercise of the power for this purpose given to them by the Conveyancing and Law of Property Act, 1881, and of all other powers if any enabling them in this behalf do and each of them doth hereby convey unto the said A. and his heirs ALL AND SINGULAR (c) See Vendor and Purchaser Act, 1874, s. 4, p. 6. This section still applies in cases of death before the 1st Jan., 1881. It is not confined to the case of a mortgagee dying intestate as to his mortgage estate, see Dart's V. & P. 5th Ed. p. 16. It has however been held not to apply to a transfer of a mortgage, see Re Spradbery's Mortgage, L. R. 14 Ch. D. 514. The Conveyancing Act, 1881, s. 30, applies in cases of death after the 1st Jan., 1881, see p. 280. (d) See Conveyancing Act, 1881, s. 7, subs. 1, F, p. 256. |