day of in the to advance s THIS INDENTURE made the year of the reign, &c. and in the year of our Lord 18 . BETWEEN Parties. (the mortgagee) of, &c. [or if by indorsement the within mentioned (mortgagee)] of the first part, (the mortgagor) of, &c. [or within mentioned (mortgagor)] of the second part, and (the assignee) of, &c. of the third part. WHEREAS, &c. (2) AND Application t WHEREAS the said (mortgagee) having occasion for the sum of new mortgage £ hath requested the said (mortgagor) to pay the dueonmortg same, but it not being convenient for him so to do, he hath applied to the said (assignee) to pay off the said mortgage, which he the said (assignee) hath agreed to do, upon having such assignment of the said messuages or tenements as hereinafter is expressed. Now THIS INDENTURE WITNESSETH, that for and in consideration of the sum of £ of lawful money of the United Kingdom of Great Britain and Ireland, to the sail (mortgage) in due on morthand well and truly paid by the said (assignee), at the request and by the direction of the said (mortgagor), testified by his being a party to and sealing and delivering these presents, the receipt whereof, and that the same is in full discharge of all principal and interest money due and owing to him the said (mortgagee) by the said (mortgagor) on the said recited security, the said (mortgagee) doth hereby acknowledge [and of and from the same and every part WITNESS. That in consideration of A gage, (1) See variations, No. CCCCLXXXI, and post. No.CCCCLXXXIII. (2) Recite here the mortgage as ante, p. 563. Recitals. TRANSFER. Leaseholds. the mortgagee assigns. thereof doth acquit, release, exonerate, and for ever discharge the said Mortgage of (assignee), his executors and administrators, and also the said (mortga gor), his executors and administrators, together with the said mortgaged premises, as well by these presents as by the receipt or acquittance for the same sum hereupon indorsed,] HE the said (mortgagee) at and by the request and direction of the said (mortgagor) testified as hereinbefore is mentioned, HATH bargained, sold, assigned, transferred, and set over, and by these presents DoтH bargain, sell, assign, transfer, and set over, and by way of conveyance only, and not for or by way of warranty of title, DoTH grant and confirm, and for the conAnd the mort- siderations aforesaid, [if further sum advanced add, and also for and in consideration of the further sum of £ of like lawful and current money, to the said (mortgagor) in hand paid by the said (assignee), the receipt whereof the said (mortgagor) doth hereby acknowledge], HE the said (mortgagor) HATH bargained, sold, assigned, transferred, ratified, and confirmed, and by these presents Doтн bargain, sell, assign, transfer, ratify, and confirm, unto the said (assignee), his executors, administrators, and assigns, ALL, &c. (1); and all and singular other the several messuages or tenements and premises comprised in the said hereinbefore in part recited indenture of lease mentioned to bear date the , and so assigned to gagor confirms. Parcels. day of the said (mortgagee), his executors, administrators, or assigns, for the residue then to come of the said term of years, by the said in part recited indenture of assignment of the Indorsement. (1) Insert here a description of the premises intended to be conveyed, unless the transfer is by indorsement, in which case say, "ALL and singular the messuages, &c. comprised in the withinwritten indenture, and thereby assigned unto the said (mortgagee) as within expressed or intended so to be." TRANSFER. Mortgage of To hold to the residue of the term. ance. singular other the deeds, evidences and writings relating to the said premises, or any part thereof, which now are, or hereafter shall or may be in the custody or power of the said (mortgagee). TO HAVE AND TO HOLD the said messuages or tenements, and all and singular assignee for the other the premises hereby assigned, or mentioned or intended so to be, with their and every of their appurtenances, unto the said (assignee), his executors, administrators, and assigns, from henceforth for and during all the residue and remainder of the said term of years in and by the said indenture of lease granted, but subject nevertheless to the same or like equity of redemption of the said premises as the same are now or heretofore were subject or liable unto. [And, &c. add power of attorney and a covenant by the mortgagee that he has not incumbered] (1). And morcover that he the said Further assur(mortgagee), his executors and administrators, and all and every person and persons whomsoever, having, claiming, or possessing any legal or equitable estate, right, title, trust, or interest, in, to, out of, upon, or respecting the said messuages or tenements, pieces or parcels of ground, and other the premises hereinbefore assigned, or mentioned or intended so to be, or any part thereof, by from, under, or in trust for him, them, or any of them, shall and will from time to time, and at all or at any time or times hereafter, upon every reasonable request of the said (assignee), his executors, administrators, or assigns, but at the proper costs and expense of the said (mortgagor), his executors or administrators, make, do, execute, and perfect all and every such further and other lawful and reasonable acts, deeds, assignments, conveyances, and assurances in the law whatsoever, for the further, better, more perfectly and absolutely or satisfactorily assigning, confirming, and assuring all and singular or any of the same messuages, or tenements and premises, with their respective appurtenances, unto the said (assignee), his executors, administrators, and assigns, for all the residue and remainder which shall be then to come and unexpired of or in the said term, as he the said (assignee), his executors, administrators, or assigns, or his or their counsel in the law, being of the degree of a barrister, shall reasonably advise and require, and the rules of law and equity will permit. IN WITNESS, &c. (1) The form of this power see post. 791 and covenant ante, p. 604, Further sum. and if a further sum be advanced, add usual mortgage covenants by the mortgagor for the title. See ante, STAMP," Schedule. Stamp. TRANSFER. Mortgage in fee No. CCCCLXXXIII. *A Transfer of a Mortgage Security in Fee, to a third person Variations where the Transfer is by Indorsement on the Mort- THIS INDENTURE made the day of in the year of the reign, &c. and in the year of our Lord, 18, BETWEEN (the mortgagee) of, &c. [or, if the transfer be by indorsement, the within mentioned (mortgagee)] of the first part, and (the mortgagor) (1) (1) It is not in any case absolutely necessary, in the simple transfer of a mortgage, where no further sum is advanced, that the mortgagor should be made a party; it is always, however, desirable to obtain his concurrence when it can be done, as furnishing an admission on his part that the sum still remains unpaid; for, as an assignee is entitled only to the sum actually remaining due upon the mortgage, and not to what may appear to be due upon the face of the deed, he is otherwise liable to be defrauded by being required to pay a greater sum than remains due; and, to use the words of Lord Loughborough, Ch. in Matthews v. Walwyn, 4 Ves. 127, "it was supposed, that in practice there is no occasion to make the mortgagor a party; and in some cases it may not be possible to make him so: and to hold that the assignee of a mortgage is bound to settle the accounts of the person from whom he takes the assignment, would tend to embarrass transfers of mortgages. I have got all the information I could, and I think I have got the best. The result is, TRANSFER. of, &c. [or within mentioned (mortgagor)] of the second part, and the (assignee) of, &c. of the third part. WHEREAS, &c. (1). AND Mortgage in fee. WHEREAS by a bond or obligation, in writing under the hand and scal of the said (mortgagor), bearing even date with the said hereinbefore in part recited [or within written] indenture of release, the said (mortgagor) became bounden in the penal sum of £ for the payment of the said principal sum of £ terest, at the times and in the manner in the said hereinbefore in and in part recited indenture of release mentioned. AND WHEREAS the Default in paysaid [or within mentioned] principal sum of £ was not paid at the time in the said [or within mentioned] proviso for that purpose, but the same is still owing to the said (mortgagee) upon the said recited [or within written] security, as he the said (mortgagor) doth hereby admit and acknowledge; and whereas there is now also due to the said (mortgagee) the further sum of £ for an arrear (2) of interest upon the said sum, making together the sum of £ (and which ment. that persons most conversant in conveyancing hold it extremely unfit, and very rash, and a very indifferent security, to take an assignment of a mortgage without the privity of the mortgagor, as to the sum really due." And again, "No conveyancer of established practice would recommend it as a good title, to take an assignment of a mortgage, without making the mortgagor a party, and being satisfied that the money was really due." And where the mortgagee is in possession of the estate, or where there is an arrear of interest to be paid by the assignee, it is more particularly essential that the mortgagor should be made a party, as no sum advanced by the assignee will carry interest beyond what may turn out to be due, on a just account between the mortgagor and mortgagee. See Matthews v. Walwyn, 4 Ves. 126; Smith v. Pemberton, 1 Ch. Ca. 67. Anon. 2. ib. 258; Lord Macclesfield v. Fitton, 1 Vern. 168. (1) Recite here the mortgage, &c. as ante, p. 576, unless the Recitals. transfer be by indorsement. (2) Although it is a rule with respect to mortgages, that arrears of in- Arrears will not terest shall not be considered as principal at the pleasure of the mort- carry interest. gagee; yet if the mortgagor be a party to the transfer, such arrears will become principal, as being in the nature of a further sum advanced by the assignee on behalf of the mortgagor; and the same was formerly considered to have been the case, although he were not a party, if the arrears due were actually and bona fide paid by the assignee. See Smith v. Pemberton, 1 Ch. Ca. 67. Anon. 2 ib. 258; Macclesfield v. Fitton, 1 Vern. 168; Gladman v. Henchman, 2 ib. 135; but by Lord Loughborough, in Matthews v. Walwyn, 4 Ves. 118. 128," it is now perfectly settled, that as between the mortgagee and persons claiming under him, without the privity of the mortgagor, they cannot add to what is due, settle the account, or turn interest into principal." |