clause of indemnity to trustees and all other clauses provisions declons and agrts usually inserted in settlements of a like kind. In witness &c. (see ante, No. XLVI.) No. LXV. No. LXVI. Agreement that a Person shall hold Title Deeds as a Deposit and for a Mortgage at some future time. Obs. 1. It is a rule in equity, grounded on the decision of Lord Thurlow, in Russell v. Russell, 1 B. C. C. 269, that a mere deposit amounts to an equitable mortgage; but as the question respecting the intentions of the parties has been frequently raised, a writing is absolutely necessary, in order to prevent litigation. 2. A mere agreement to mortgage, where there is no deposit of title deeds, will not in equity defeat the legal claims of other parties, Finch v. Winchelsea (E.), 1 P. Wms., and ought not therefore to be substituted in any case for a regular mortgage. Articles &c. (see ante, No. XLVI.) Betn (Borrower) of &c. of the one part and (Lender) of &c. of the other part Witness That in conson of the sd (L.) having on or about the of day instant transferred into the name of the said (B.) the sum of £ 3 per cent. Consolidated Bk Annties the property of the sd (L.) for the accommodation of the said (B.) and by way of loan to him the sd (B.) Hath deposited and by these prsts Doth declare that he hath deposited with the sd (L.) and in his hands put the sevl deeds and papers mentd or enumerated in the schedule to these prsts being deeds and papers which relate to or concern the title of all that piece or parcel of ground messuage &c. (parcels) with the rights members and appts To the intent that the same deeds and the same piece or parcl of grnd messe &c. and the fee-simple and inhance thof may be a secty to the sd (L.) his exs ads and ass for the transfer by the sd (B.) and his exs of the sum of £ 3 per cent. Consolidated Bk Annties as afsd and for the paymt in the mean time by the sd (B.) his hrs exs ads and ass to the sd (L.) his exs &c. of the divds which would have become payable on or for the sd sum of £ 3 per cent. &c. if standing transferred in his or their names And the said (B.) doth hereby agree to purchase or No. LXVI. Equitable Mortgage. No. LXVI. next cause to be purchased the sd sum of £ 3 per cent. Consld Bk No. LXVII. Mortgage, (Interest). No. LXVII. Agreement in a Mortgage for Renewal of a Lease, and that Mortgagor will take 41. 10s. per Cent, for his Debt on prompt Payment. That he the sd (mtgor) his hrs exs &c. or some of them shall and will at his their or one of their own proper costs and chas from time to time at the usual and accustd times for the renewal apply to and obtain from the Dean and Chapter of B. a lease or leases of the lds heredts and preses mentd and intended to be resply assignd and assurd with the appts for a furr term or terms of years and under such and the like rents covts and agrts as are reserved and contd in the present lease so made and grtd thof as afd and shall and will from time to time and at the usual times for such renewals as afd continue to apply for the like new lease and leases during and so long as the sd sum of £ or any pt thof shall remain or be chgbe upon the sd preses And also that he the sd (mtgor) his hrs exs or ads or some of them shall and will well and truly pay or cause to be pd unto the sd Dean and Chapter &c. as well the rent re served by the sd indre of lease and the rent or rents to be reserved by any future lease or leases as all and evy the fine or fines chas and exps of such renewal or renewals as afd which sd new lease or leases so to be made and granted of the sd pres as afd shall immly upon the making and exting thof be from time to time assgnd and transfd by the sd (mtgor) his exs ads or ass unto the sd (mtgee) his exs ads or ass under the like covts provos and agts as are in these prests expssd and contd of and concerning the sd lease and preses hby assd or mentd so to be And moreover that in case the sd (mtgor) his hrs exs or ads shall decline or neglect to apply for and obtain such new lease or leases at the usual and accustomed times for applying for the same or within the space of six cal mths then it shall and may be lful to and for the sd (mtgee) his exs ads or ass to apply for and obtain the same from the Dean &c. and to pay the fine or fines and all or. the chas and exps of such renewal or renewals all which sd fines chas and exps with int. for the same after the rate of £ for every 1007. for a year from the time or times of payg or advancing the same shall be chagd upon the sd preses and evy pt thof so reld and conveyed by the sd (mtgor) unto and to the use of the sd (mtgee) and his hrs as afd And that no pt of the sd manor &c. in the sd indre of lease and rele and in these prests comprisd shall be redeemed or redeembe by the sd (mtgor) his hrs &c. or any of them but upon paymt of all and evy the sum and sums of money which shall be advanced and pd by the sd (mtgee) his exs &c. for obtg such renewal or renewals togr with int. for the same from the time or times of advancement thof as afd as of the sd principal sum of £ and int. any thing thin or hin in any wise to contry notwithstg And it is hby decld and agrd that until deft shall be made of or in paymt of the sd £ and int. or of some pt thof conty to the afd provo and condon for paymt of the same it shall and may be lful to and for the sd (mtgor) his exs &c. peaceably and quietly to hold and enjoy the sd rectory &c. mentd and intended to be hby assd and assurd and evy pt thof with the appts and to rece and take have hold and enjoy all and evy the rents bents and advants thof and of evy pt thof to his and their own use witht any let suit molestation interruption or disturbance of or by the sd (mtgee) his exs &c. or any of No, LXVII. Mortgage, (Interest). No, LXVII. them or of or by any psn claiming or to claim by from under or in trust for him or them or any of them and witht any acct to be rendered to him or them for the same And lastly it is hby pr cent. deed and agrd by and betn the pties to these prests and the sd AGREEMENTS FOR A PARTITION. Partition by parol, where good or otherwise. 1. Partition by Parol, where good or 3. Agreements sometimes necessary. 4. Stipulations as to Costs. 2. Effect of a Parol Agreement to hold SECT. 1. At common law, coparceners might make partition by parol without deed, Litt. s. 250; also tenants in common might make partition by parol, if they afterwards executed the partition by livery of seisin. A parol partition between joint-tenants of freeholds was not good, Dyer, 350 b; Co. Litt. 169 a; Cro. Eliz. 95. But joint-tenants as well as tenants in common might make partition of a term of years without deed, Dyer, 350 b; Cro. Eliz. 95. The author of the "Commentaries," and after him Mr. Cruise, observe, that "the Statute of Frauds has abolished this distinction, and made a deed necessary in all cases." It is, however, the more general opinion, that a writing only is necessary on partition by coparceners, and a writing executed with livery of seisin by tenants in common, 2 Comm. 324; 4 Cru. Dig. 96, s. 16; Oakley v. Smith, Ambl. 368; Allnat on Part. 130. In the case of joint-tenants, a deed is always necessary now as it was Partition. at common law, whether on partition of corporeal hereditaments, where there must be mutual conveyances, Johnson v. Wilson, Willis, 248, or on the partition of incorporeal hereditaments, where an agreement under the hands and seals of the parties is held to be sufficient, 1 Ld. Raym. 536, 537; 1 Salk. 43. (As to partition by deed, see further, PARTITION.) agreement to 2. An agreement between joint-tenants to hold in severalty will Effect of a parol operate in equity to sever the joint-tenancy, so that the jus accrescendi, hold in severalty. or right of survivorship, is destroyed, 2 Comm. 185; Brown v. Raindle, 3 Ves. jun. 256. But it appears that a mere verbal agreement will not be sufficient; there must be some note or writing, 2 B. C. C. 220; 1 Vern. 472; 2 Cru. Dig. 513. So a parol agreement for equality of partition, put in execution and long acquiesced in, if entered into by parties having a right to contract, will be established in equity, Ireland v. Rittle, 1 Atk. 542. But a partition under an agreement made by the husbands of two joint-tenants will not bind the inheritance of the wives, unless they be parties thereto, Ireland v. Rittle, 1 Atk. 542; 2 Cru. Dig. 513. A parol agreement to make partition by the guardian of an infant tenant in common will be binding, if confirmed by the infant after his coming of age by granting leases or otherwise, Whaley v. Dawson, 2 Sch. & Lef. 367. Also a parol partition between tenants in tail will be binding on the issue, 2 Vern. 233. But it appears that an agreement to make partition of copyhold lands cannot be enforced in a court of equity, if it be made without the privity of the lord, Oakley v. Smith, Ambl. 368; S. C. Eden, 261. sometimes ne 3. Although joint-tenants and tenants in common are compellable, Agreements by the 31 Hen. 8, c. 1, and 32 Hen. 8, c. 32, to make partition, yet cessary. this will not obviate the necessity for an agreement, particularly where delay is likely to arise in executing the partition. to costs. 4. It was formerly held, that, in the absence of all stipulation, the Stipulations as expence was to be borne equally by all parties, however unequal their interest, Norris v. Le Nere, 3 Atk. 81; Cornish v. Gest, 2 Cox's Cas. 27. This doctrine appears, however, to have been since overruled, Calmady v. Calmady, 2 Ves. jun. 568; an express provision on this point ought therefore to be inserted in the agreement. VOL. I. M |