possession, unless the land alone would security (a). 1068. powers of and mort gagee [And now by virtue of stat. 44 & 45 Vict. c. 41, s. 18 Leasing (Appendix), a mortgagor in possession has, as against mortgagor every incumbrancer, and a mortgagee in possession has, sin. as against all prior incumbrancers, and as against the mortgagor, power to make from time to time of the mortgaged land, (i.) an agricultural or occupation lease for any term not exceeding twenty-one years; and (ii.) a building lease for any term not exceeding ninety-nine years, and for the purpose of making such leases, to execute and do all necessary and proper assurances and things. But every such lease must be made to take effect in possession not later than twelve months after its date, and reserve the best rent that can reasonably be obtained, without any fine, and must contain a covenant for payment of rent, and a condition of re-entry on non-payment within a time not exceeding thirty days. And a counterpart must be executed by the lessee, and delivered to the lessor. And every such building lease must be made in consideration of buildings, repairs, or improvements already erected or executed, or agreed to be erected or executed within five years from the date of the lease, and a peppercorn or nominal rent may be made payable for the first five years, or any less part of the term. In case of a lease by the mortgagor, he must, within one month after making the lease, deliver to the mortgagee, or to the mortgagee first in priority, a counterpart duly executed by the lessee. And a contract to make or accept a lease under this section is enforceable by or against every person on whom the lease, if granted, would be binding. This section applies only if and as far as a contrary intention is not expressed by the mortgagor (a) Story's Eq. Jur. § 1017; 2 Spence's Eq. Jur. €46. 648; Coote Mortg., 3rd ed. 325, 332, 334; 3 CH. 2, s. 1. PT. II. T. 10, and mortgagee in the mortgage deed, or otherwise in writing, and has effect subject to the terms of the mortgage deed or of any such writing. And it enacts, “(14) Nothing in this Act shall prevent the mortgage deed from reserving to or conferring on the mortgagor, or the mortgagee, or both, any further or other powers of leasing or having reference to leasing; and any further or other powers so reserved or conferred shall be exerciseable, as far as may be, as if they were conferred by this Act, and with all the like incidents, effects, and consequences, unless a contrary intention is expressed in the mortgage deed. (15) Nothing in this Act shall be construed to enable a mortgagor or mortgagee to make a lease for any longer term or on any other conditions than such as could have been granted or imposed by the mortgagor, with the concurrence of all the incumbrancers, if this Act had not been passed. (16) This section applies only in case of a mortgage made after the commencement of this Act; but the provisions thereof, or any of them, may, by agreement in writing made after the commencement of this Act between mortgagor and mortgagee, be applied to a mortgage made before the commencement of this Act, so nevertheless, that any such agreement shall not prejudicially affect any right or interest of any mortgagee not joining in or adopting the agreement. (17) The provisions of this section referring to a lease shall be construed to extend and apply, as far as circumstances admit, to any letting, and to an agreement, whether in writing or not, for leasing or letting” («).] 1068a. Expendi ture. A mortgagee in possession is not obliged to lay out money any further than to keep the property in necessary repair, and then only to the amount of the surplus rents : and he has no right to make it more expensive for the (a) In re Nugent & Riley's Contract, 27 Sol. Journ. 636. the PT.IT 10, mortgagor to redeem than may be required for purpose of keeping the property in a proper state of repair, and of protecting the title to the property. Hence, he will not be allowed for general improvements made without the consent or acquiescence of the mortgagor (a). 1069. CH. 2, s. 1. gage of How made. IV. Mortgages of copyholds usually consist of a condi- IV. Morttional surrender in the Manor Court by the mortgagor to copyholts. the mortgagee and his heirs. By the condition the surrender is made void on payment, by the mortgagor, etc., of principal and interest, to the mortgagee, etc., on a given day. The condition is entered on the rolls, and immediately follows the surrender. The condition may, however, be contained in a separate deed of defeasance of even date with the surrender. But this mode should never be resorted to when it can be avoided, as the defeasance may be lost (b). 1070. In addition to the surrender and condition, there is usually a previous covenant to surrender, containing covenants for the title and for payment of the money (c). 1071. vacated. If the money is paid at the stipulated time, and the How surrender has not been perfected by admittance, it becomes void without further ceremony, and the surrenderor is in possession, without any readmission or fine; or if the mortgagee has been admitted, and has taken possession, the mortgagor may yet resume his estate by making an entry on the land (d). But as upon admittance a fine Mortgagee becomes due to the lord, it is not usual for a mere mort- not adgagee to be admitted to the copyhold until some suspicion arises that his loan will not otherwise be repaid (e). 1072. (a) Story's Eq. Jur. § 1016 b; 2 Spence's Eq. Jur. 808; Coote Mortg., 3rd ed. 344. (b) Coote Mortg., 3rd ed. 112. (c) Coote Mortg., 3rd ed. 116. (e) Burton, § 1266. frequently mitted. Pr. II. T. 10, A mortgagee not being a tenant until admittance, cannot in the meantime pass the lands by surrender. He may, surrenderee however, make an equitable transfer of them. And he may admittance. also devise the lands; and in the case of a will made before can do before Foreclosure before 1st of January, 1838, they would pass in equity, but the devisee was not entitled to admission as legal tenant; for a legal devise of copyholds could not be made before admittance; and therefore, although the devisee may have been admitted, the surrenderor or his heir still remained tenant to the lord (a). 1073. After breach of the condition, a mortgagee of a copyhold admittance. may proceed to foreclose the estate, even before admittance (b). 1074. Surrender to use of will. Conse quences of tance of the Since the passing of the 55 Geo. 3, c. 192, surrenders of copyholds to the use of a will are no longer necessary. But, prior to that statute, a surrender made by the mortgagee to the use of his will before admittance was void, and would not have been made good by a subsequent admittance (e). 1075. If the surrenderee is admitted, and the condition is the admit broken by the non-payment of the money, his estate is mortgagee. absolute, and when the mortgage is paid off, a readmission and fine will be necessary, and the mortgagor will thereupon gain a new estate; and the descent will be altered, so that if the lands had originally descended to him ex parte maternâ, they will afterwards descend as if he had taken by purchase (d). 1076. Second surrender. After the conditional surrenderee has been admitted, he becomes the tenant of the lord, and the surrenderor may release to him the equity of redemption, before condition broken (e). 1077. In the interval before the admittance of the mortgagee, (a) Coote Mortg., 3rd ed. 114. (d) Coote Mortg., 3rd ed. 113. (e) Coote Mortg., 3rd ed. 114. CH. 2, s. 1. the mortgagor may make a second surrender, which will PT. II. T. 10, be good, if the first surrender is not perfected by admittance. But although the first surrender be not enrolled, the second mortgagee, though without notice of the former, does not, by the enrolment of his surrender, acquire priority (a). 1078. the equity The equity of redemption may be of course mortgaged Mortgage of without surrender, and will pass by deed, being an equita- of redempble interest only (b). 1079. tion of copyholds. freeholds holds to If freeholds are conveyed in mortgage, with a covenant, Mortgage of for better securing the payment of the debt, to procure and copyadmission to certain copy holds, and surrender them to the gether. mortgagee, and in the meantime to stand seised of the copyhold estate in trust for him, both freeholds and copyholds are primarily mortgaged, and both equally liable to the mortgage debt (c). 1080. gage of V. Where a mortgage is by assignment of a leasehold V. Mortinterest, unless there is a special provision to the contrary, leasehold. the mortgagee, as between himself and the mortgagor, takes subject to the covenants and obligations of the original lease. But if an underlease, instead of an assignment, is taken, the mortgagee is protected (d). 1081. A mortgage, whether legal or equitable, of leasehold Goodwill. premises, includes the goodwill of a trade followed on the premises, and the fixtures (e). A goodwill of a business is that connection in trade which induces customers to deal with the person or persons carrying on that business. It varies in almost every case; but it is in effect an appreciable part of the assets of a concern, which may be preserved (at least to some extent) if the business is sold as a going concern, but is wholly lost if the concern is wound up, its liabilities discharged, and its assets got in and dis (a) Coote Mortg., 3rd ed. 115. (b) Coote Mortg., 3rd ed. 114. (c) Coote Mortg., 3rd ed. 491. (d) 2 Spence's Eq. Jur. 614. |