MORTGAGES

Mortgagor to

Mortgagee in fee.

(Concise Form.) (C) Proviso for Abatement of Interest on punctual Pay

Proviso for reduction of in

terest on punc

ment. See ante, p. 78, n. (16).

"PROVIDED ALWAYS NEVERTHELESS, and the said (mortgagee) for himself, his heirs, executors, and adminitual payment, strators, doth hereby covenant, declare, and agree to and with the said (mortgagor) his heirs, executors, and administrators, that if the said (mortgagor) his heirs, executors, or administrators, do and shall so long as the said principal sum of £ or any part thereof, shall be permitted to remain upon the present security, well and truly pay, or cause to be paid unto the said (mortgagee) his executors, administrators, or assigns, interest for the said sum of £ after the rate of £4 for every £100 by the year, by equal half yearly payments on the said

and

day of day of in each year, or within one calendar month next thereafter, then and in such case, but not otherwise, he the said (mortgagee) his executors, administrators, or assigns, shall and will accept and take interest for the said sum of £ after the rate of £4 per centum per annum, in lieu and full satisfaction of and for interest for the said sum, after the rate of £5 per centum per annum hereinbefore covenanted and agreed to be paid for the same, and shall and will from time to time sign and give proper and sufficient acquittances and discharges for the same accordingly; any thing hereinbefore or in the said in part recited bond or the condition thereunder written contained to the contrary thereof in any wise notwithstanding. PROVIDED also, and it is hereby further agreed and declared, that in case interest for the said sum of £ or any part thereof,

shall at any time or times be in arrear for the said space of one calendar month or upwards, next after the same is hereinbefore made payable, and the said (mortgagee) his executors, administrators, or assigns, shall notwithstanding the lapse or expiration of the said period, accept interest for the said sum, after the rate of £4 per cent. per annum, yet that

Mortgagor to Mortgagee in fee. (Concise Form.)

he the said (mortgagee) his executors, administrators, or MORTGAGES assigns, shall not be considered by reason of such acceptance, as having waved the benefit of the proviso hereinbefore last contained, but shall and may, from time to time, and at all times thereafter, have and claim interest for the said sum after the rate of £5 per cent. per annum, in case of any future arrears of the same, in like manner as if no such lower interest as aforesaid had been accepted or taken.”

It is laid down in some of the early cases, that although the reservation of 4 per cent. with a proviso in the nature of a condition or penalty that if it be not punctually paid it shall be raised to five or other higher rate of interest will be void, (Nicholls v. Maynard, 3 Atk. 520), yet that a covenant for effectuating the same object will be good. Irvy v. Cox, Prec. Ch. 160. Marq. of Halifax v. Higgens, 2 Vern. 134. Brown v. Barkham, 1 P. Wms. 652; and vide Seton v. Slade, 7 Ves. jun. 273. This distinction is however so dissonant from the principles which now govern our courts of equity, that notwithstanding the authorities in its support, it would be extremely hazardous to rely upon it.

Where there is a proviso reducing interest in case of punctual payment, and the mortgagor fail, he must pay the higher interest and can have no relief in equity, Nicholls v. Maynard, 3 Atk. 509. Brown v. Barkham, 1 P. Wms. 652. Marq. of Halifax v. Higgins, 2 Vern. 134. Prec. Ch. 161; but otherwise where it is an increase from four to five on default, which is only nomine pœnæ, and relievable in equity, Seton v. Slade, 7 Ves. 273

Interest to be

increased on

default.

VOL. V.

H

MORTGAGES

Mortgagor to

Mortgagee in fee. (Concise Form.)

Covenant by

mortgagee to keep the pre

(D) A Covenant by the Purchaser to repair and insure. See ante, p. 71, n. (8), 78, n. (16).

"AND the said (mortgagor) for himself, his heirs, executors, and administrators, doth hereby covenant, promise, mises in repair. and agree with and to the said (mortgagee) his executors, administrators, and assigns, that he the said (mortgagor) his heirs or assigns, shall and will at all times, and from time to time during the continuance of the said mortgage security, well and sufficiently repair and keep in good and substantial repair and condition, all and every the messuages or tenements and buildings, now or hereafter standing or being upon the said lands and hereditaments hereby granted and released, or any part thereof: AND also shall and will immediately upon and after the execution of these presents, Lor (as the case may be) within one calendar month next immediately before the expiration of the policy of insurance hereinbefore assigned, in case the said sum of £ any part thereof shall be then remaining due and unpaid] at his and their own proper costs and charges, insure, or cause to be insured, in the insurance office, or some other public insurance office in London or Westminster, for insuring houses and buildings from fire, to be named or approved of by the said (mortgagee) his heirs, executors, administrators, or assigns, all and every the said messuages or tenements and buildings, from loss or damage by fire, in the said sum of £ for the [further] term of years, in the joint names of the said (mortgagor) and (mortgagee) their respective heirs, executors, administrators, or assigns, and keep the same so insured from time to time, during so long as the said sum of £

or

or any part

thereof, or the interest thereof, or of any part thereof, shall remain due, and shall and will deposit every such policy of insurance with the said (mortgagee) his executors, administrators, and assigns, and shall and will at his and their own

Mortgagor to Mortgagee in fee. (Concise Form.)

insure.

proper costs and charges, if and when he or they shall be MORTGAGES thereunto required by the said (mortgagee) his heirs, executors, administrators, or assigns, [assign and make over the said policy unto the said (mortgagee) his executors, administrators, and assigns, in trust, in the first place, for better securing to him and them the payment of the said sum of L and interest, and subject thereto, in trust for the said (mortgagor) his executors, administrators, and assigns, and also shall and will] produce and shew unto him or them the receipts or vouchers for the premiums or other sum or sums of money paid for such insurance or insurances. And in case the In default said (mortgagor) his heirs or assigns, shall neglect or omit mortgagee may to make or keep on foot such insurance or insurances, or to keep the said premises so in repair, or refuse to assign the policy or policies thereof, or to produce such receipts or vouchers as aforesaid, then it shall be lawful for the said (mortgagee) his executors, administrators, or assigns, so to insure or cause to be insured or repaired the said premises, or any part thereof. And that he the said (mortgagor) his heirs, &c. shall and will from time to time, on demand, well and truly pay or cause to be paid to the said (mortgagee) his executors, &c. all such sum and sums of money as he or they shall advance or pay for or in respect of any such sums, with interest for the same after the rate of £5 per cent. per annum, to be computed from the time or respective times of paying the same, and also all such sums of money, costs, charges, and expenses, as he the said (mortgagee) his executors, administrators, or assigns, shall pay, expend, sustain, or be put unto in recovering the sum so to be insured, or any part thereof, with interest for the same after the rate of £5 per cent. per annum, and in default thereof he the said (mortgagee) his heirs or assigns, shall and may by and out of the rents and profits of the said premises, or otherwise, retain and re-imburse himself and themselves the said expenses, together with interest for the same after the rate aforesaid, and until repayment thereof the same shall be chargeable upon the messuages, lands, and hereditaments, comprised in these presents, as or by way of

Money received to be expended

iu rebuilding.

MORTGAGES a further charge thereupon, [and the said premises shall not be redeemed or redeemable until as well the said Mortgagor to Mortgagee in fee. sum so paid or expended, together with interest after the (Cmcise Form.) rate aforesaid, as the said principal sum of £ and interest, shall be fully paid and satisfied.] AND it is hereby further declared and agreed, that in case the said messuages or tenements and buildings, or any part thereof, shall be burnt down, destroyed, or damaged by fire, then and in such case all and every such sum or sums of money as shall or may be recovered or received upon or by virtue of such policy or policies as aforesaid, shall if required by the said (mortgagee) his heirs or assigns, be laid out and expended in the rebuilding or repairing the same, [or such parts thereof as shall be so burnt down, destroyed, or damaged,] or at his or their pleasure and discretion (in case the same shall not be laid out by the said office of insurance in such rebuilding or repairs) shall or may be taken and received by him or them, and paid and applied (or so much thereof as shall be sufficient) or as far as the same will extend in payment, satisfaction, and discharge of the sum then due to him or them upon the security of the said premises. AND, &c. (Power of Attorney, as ante, p. 90.)]