and a peppercorn or other rent less than the rent ultimately payable may be reserved for the first five years or any shorter time (b). All these provisions may be varied or excluded by the mortgage deed or by agreement in writing, and may be applied by such an agreement to mortgages made before the 1st January, 1882 (c). The tenant for life of the equity of redemption has had power, under the Settled Land Acts, since the 1st of January, 1883, where the mortgage was made since 1881, to grant the leases mentioned above (d). It is a long-established principle, and one which still exists notwithstanding the repeal of the usury laws, that the Courts will not permit a person, under the colour of a mortgage, to obtain a collateral advantage not belonging or appurtenant to the contract of mortgage, or, as it is called, to clog the redemption with an agreement; but the Court will, in taking the account in a redemption action, allow to the mortgagee sums actually deducted by him for commissions or bonus at the time of making the advances, provided the deductions were made as part of the mortgage contract under a bargain deliberately entered into by the parties while on equal terms, and knowing perfectly well what they were doing, and without any improper pressure, unfair dealing, or undue influence on the part of the mortgagee, the Court treating the transaction in such case as amounting, in fact, to the payment of the whole amount of the advance to the mortgagor, and the return of a certain part of it to the mortgagee as a consideration for the accommodation (e). Formerly, in consequence of the primary liability of the residuary personal estate of a deceased person to pay his debts, the heir and devisee were entitled to have the realty of the deceased exonerated from any mortgage debt which he (b) Conveyancing Act, 1881 (44 & 45 Vict. c. 41), s. 18 (9), (10). (c) Ibid. s. 18 (13), (14), (16). 46 Vict. c. 38), s. 6; Settled Land Act, 1890 (53 & 54 Vict. c. 69), s. 7. (e) Mainland v. Upjohn, 41 Ch. D. 126; 58 L. J. Ch. 361; 60 L. T. 614; 37 W. R. 411. was personally liable to pay; but where any person has died after the 31st December, 1854, entitled to any freehold or copyhold estate which, at the time of his death, is charged with the payment of any mortgage, and such person has not signified any contrary intention, the heir or devisee takes the land charged with the mortgage debt (ƒ); and in the case of the will of any person who dies after the 31st December, 1867, a general direction that the testator's debts shall be paid out of his personal estate is not deemed a "contrary intention" (g). These provisions were subsequently extended to the leasehold estates of a testator or intestate who dies after the 31st December, 1877; and in the case of a person dying after that date, a "contrary intention" is not deemed to be signified by a charge or direction for the payment of debts out of the residuary real and personal estate or residuary real estate (h). See CONSOLIDATION OF MORTGAGES EQUITABLE MORTGAGES 1. The debt of £ TACKING OF MORTGAGES. Requisitions. secured by the mortgage of 18 must be paid off out of the purchase-money, and the mortgagee must join in the conveyance, 2. What is due to the mortgagees, and how much of the consideration money is to be applied towards each mortgage? 3. The power of sale contained in the mortgage of 1st January, 1860, does not appear to be exercisable by the assigns of the mortgagee. The mortgagor must therefore concur in the conveyance to the purchaser. 4. Having regard to the unsatisfactory nature of the power of sale contained in the mortgage, evidence must be furnished to the purchaser showing that some erent has happened which authorizes the sale. 5. Evidence must be produced showing that some money (f) 17 & 18 Vict. c. 113, s. 1. (h) 40 & 41 Vict. c. 34, s. 1. (g) 30 & 31 Vict. c. 69, s. 1. still remains owing upon the security of the mortgage. The power of sale is not such as to make this requisition unnecessary. 6. How does the mortgagee propose to make a title to the last day of the term? If by exercising the power of attorney contained in the mortgage of 1880, evidence must be produced showing that the mortgagor is still alive. 7. The mortgage of , 1880, does not contain a joint account clause. This being so, the legal personal representative of A. B., the deceased mortgagee, must concur in the conveyance to the purchaser. What, if any, portion of the purchase-money is to be received by him? 8. The money due on mortgage of the property being expressed in the indenture of 18 to be held subject to the trusts of the settlement referred to therein, such settlement must be produced for the inspection of the purchaser's solicitor in order that he may satisfy himself that it contains nothing to prevent the mortgagee giving a receipt, and a statutory acknowledgment of the purchaser's right to production of such settlement must be given. 9. What is the date of the settlement by A. B., the mortgagor, of the equity of redemption of the premises included in the mortgage proposed to be transferred by C. D.? If it is subsequent to the indenture of transfer and further charge to C. D., it cannot, of course, affect the title; but if, as would appear, it was prior to such last-mentioned indenture, though subsequent to the original mortgage, A. B. had no power, unless reserved to him in the settlement, to encumber the equity with the further £9,000 by the indenture of July, 18 and in that case the security offered is to that extent defective. MORTMAIN AND CHARITABLE USES. The subjects of mortmain and charitable uses respectively are in most works dealt with together; there is, however, no necessary connection between a corporation on the one hand, and a charity on the other hand, and, as dealing together with similar, but distinct, subjects is liable to cause a confusion of ideas, they are hereunder treated separately. (i) Mortmain. At common law a corporation had power to take and hold land. But since Magna Charta (i) restrictions have been imposed with a view to prevent corporations buying land, and thus depriving the feudal lords of the services they would otherwise be entitled to. The Mortmain Acts apply to corporations sole as well as aggregate (), and leaseholds, if for more than ninety-nine years, were said to be within the Acts (7). The former Acts on the subject were consolidated by the Mortmain and Charitable Uses Act, 1888 (m). This Act provides that if land is assured to a corporation otherwise than under the authority of a licence from the Crown, or of a statute for the time being in force, it shall be forfeited to the Crown or mesne lord (n). Land in the Act includes tenements and hereditaments, corporeal and incorporeal, of whatsoever tenure and any estate and interest in land (0). This wide definition appears to have the effect of subjecting corporations, as from the 13th of August, 1888, to the further disability of not being able, without licence or statutory authority, to take any estate or interest in lands; but since the 4th August, 1891, this definition has been repealed and replaced by a new one, and land now only includes tenements and hereditaments, corporeal and incorporeal, of any tenure, but not money secured on land or other personal estate arising from or connected with land (p). Alienations in mortmain are not void but only voidable, and if the Crown and mesne lords waive their rights, the corporation can hold the land. The following corporations amongst others are authorized by statute to hold land:-(1) Joint stock companies in (i) 25 Edw. 1, c. 36. () Viner's Abr. Mortmain (B. 1), p. 614. (1) Ibid., pp. 20-22. (m) 51 & 52 Vict. c. 42. (o) Ibid. s. 10 (iii). (p) 54 & 55 Vict. c. 73, s. 3. corporated under the Companies Acts (q); (2) companies incorporated by special Acts containing similar provisions; (3) the Governors of Queen Anne's Bounty (r); (4) incorporated charities (»). Corporations holding money in trust for public or charitable purposes may invest money on real security authorized by their trusts without being deemed to have acquired land in mortmain, and no contract for or conveyance of any interest in land made bonâ fide for the purpose only of such security is to be deemed void, but if the equity of redemption of the premises comprised in such security becomes liable to foreclosure or otherwise barred or released, it is thenceforth to be held in trust for sale and to be sold accordingly, and if any decree is made for the redemption or enforcing of the security, it shall direct a sale in default of redemption, and not a foreclosure of such premises (t). Assurances to corporations for the purposes only of public parks, elementary schools, public museums, or dwellings for the working classes, are valid provided they satisfy the statutory requirements as to charitable uses referred to below (u). (ii) Charitable Uses. The alienation of land for charitable purposes is subject to restrictions which were originally imposed by the Charitable Uses Act, 1735, commonly, but improperly, called the Mortmain Act (x), and are now embodied in the Mortmain and Charitable Uses Act, 1888 (y), under which statute every assurance of land, with the exceptions referred to hereunder, to or for the benefit of any charitable uses, and every assurance of personal estate to be laid out in the purchase of land to or for the benefit of any charitable uses, must be made in accordance (9) Companies Act, 1862 (25 & 26 Vict. c. 89), s. 6. (r) 2 & 3 Anne, c. 20. (s) 18 & 19 Vict. c. 124, s. 35; 33 & 34 Vict. c. 34. (t) The Charitable Funds Investment Act, 1870 (33 & 34 Vict. c. 34). (u) 51 & 52 Vict. c. 42, s. 6; 53 & 54 Vict. c. 16. (x) 9 Geo. 2, c. 36. |