Mortgagor to Mortgagee in fee. (Concise Form.) Mortgagee not to be answerable for acci dents. Covenant to money. and paying unto the said (mortgagee) his heirs, executors, MORTGAGES administrators, or assigns, the money which shall be owing to him or them respectively. PROVIDED always, and it is hereby further declared and agreed by and between the said (mortgagor) and (mortgagee) that the said (mortgagee) his heirs, executors, or administrators, shall not in any case be answerable or accountable for any misfortune, loss, or damage which shall or may at any time or times happen to the said hereditaments and premises, or the said purchaser, or other monies, or any part thereof respectively, without his or their own wilful default. AND the said (mortgagor) for himself, his heirs, executors, and administrators, doth pay mortgage covenant and agree with the said (mortgagee) his heirs, executors, administrators, or assigns, by these presents in manner following, that is to say, that he the said (mortgagor) his heirs, executors, administrators, or assigns, shall or will on demand made thereof, well and truly pay, or cause to be paid unto the said (mortgagee) or his heirs, executors, administrators, or assigns, the said sum of £ and interest, notwithstanding the power of sale, and of receiving and retaining the purchase money, and of rents and profits of or for the said premises hereinbefore given to or vested in him or them for payment thereof. AND, &c. (usual covenants for title, and mortgagor's enjoyment till default.) IN WITNESS, &c. MORTGAGES Mortgagor to Mortgagee in fee. (Concise Form.) (S) Covenant for Production of Title Deeds which cannot be delivered to the Mortgagee. See ante, p. 83. ovenant to produce deeds Not delivered over., But to be redelivered. "AND further, that in case of any default in payment of the said principal sum of £ , or the interest thereof, contrary to the covenant or agreement hereinbefore contained for that purpose, He the said (mortgagor) his heirs and assigns, shall and will from time to time, and at all times thereafter, at his and their own proper costs and charges, upon the reasonable request of the said (mortgagee) his heirs or assigns, show forth and deliver, or cause to be showed forth and delivered unto him and them, or to his or their counsel or attornies, to be pleaded or given in evidence or otherwise, as occasion shall require, for the necessary maintenance or defence of the estate, title, and interest of him the said (mortgagee) his heirs and assigns, of, in, and to the hereditaments and premises hereinbefore granted and released, or otherwise assured, or intended so to be, or of any part thereof, in any wise relating to the said several hereinbefore in part recited indentures mentioned to bear date on or about, &c. and made or expressed to be made between, &c. he and they at all times, and from time to time, giving a proper receipt and acknowledgment for the same, or such of them as shall be so produced, and which said several indentures and writings the said (mortgagee) for himself, his heirs, executors, administrators, and assigns, doth covenant, promise, and grant to and with the said (mortgagor) his heirs and assigns, to deliver and give up or cause and procure to be delivered and given up unto him the said (mortgagee) his heirs or assigns, or other the person or persons producing or entitled to the custody of the same, upon and immediately after the necessary use shall be had thereof, in the same state and condition as he the said (mortgagee) his heirs or assigns, or his or their counsel or attornies received the same, (accidents by fire or other inevitable cause only excepted). IN WITNESS, &c. MORTGAGES Demise. No. V. Mortgage (1) of Freehold Lands by Demise for a Variations where Part of the Premises are Copyhold. Where the Wife of the Mortgagor is a Party, &c. &c. THIS INDENTURE, made the day of (1) Mortgages in fee were originally the only species of Eligibility of mortgage securities; but it being holden, that on the mortgagor demise. mortgage by failing to pay the money on the day mentioned in the condition for redemption, the land became absolutely forfeited and vested in the mortgagee, and was consequently subject to dower and all other charges affecting the mortgagee's estate, (see Co. Lit. 221, 222; Nash v. Preston, Cro. Car. 190,) mortgages by demise were afterwards had recourse to. This doctrine, however, in process of time, having been exploded by the interference of our courts of equity, (vid. Hard. 465, and Eq. Ca. Ab. 310,) mortgages in fee became prevalent, and are still more generally adopted than those for a term, on account of their entitling the mortgagee on a foreclosure to the inheritance, and absolute dominion over the land; whereas in the case of mortgages by demise, a foreclosure can give no more than the estate forfeited, namely, an estate for years, which will of course (un Brevity. Wife. less otherwise provided for) be subject to all the disabilities respecting the felling of timber, opening mines, &c. which are incident to the estate of any other termor. But on the other hand, mortgages in fee, on account of the discordancy between the maxims of law and equity, are frequently attended with inconveniences; for on the decease of the mortgagee, the land will at law descend to his heir, whilst the money will belong to his exccutors, Thornborough v. Baker, 1 Ch. Ca. 285, Turner's case, 2 Vent. 348; and so on failure of redemption and foreclosure by the mortgagee, the land will in equity (unless a contrary intention be apparent, Cotton v. Isles, 1 Vern. 271,) belong to his executors, Ellis v. Graves, 2 Ch. Ca. 50, Awdley v. Awdley, 2 Vern. 192, although at law it will descend to his heirs; a circumstance which, by the minority, absence, &c. of the heir, sometimes occasions a difficulty in procuring a reconveyance on a redemption; as do also the doubts which frequently subsist respecting the intention of the ancestor as to whether, in case of foreclosure, the land is to be reckoned of a real or personal nature; see Vol. I. p. 376, n. (1). Mortgages by demise for a term, therefore, where the right to the land and the money vests in the same person, appear on the whole, to be preferable to mortgages in fee where a portion of the inheritance is an ample security for the sum advanced, and particularly if it be stipulated between the parties, that on non-performance of the condition, the mortgagor shall convey the inheritance, which has been considered to be a valid stipulation; see 5 Bac. Ab. 5. 2 Cru. Dig. 89; scd quære, and vid. post. * If brevity be particularly desired, those parts of the precedent included in brackets may be omitted. (1) If the wife of the mortgagor be entitled to her dower, make her a party, and see post, No. XX. If the mortgagor took the estate with limitations to prevent dower, see post, No. XXI. Demise. Recitals. WHEREAS, &C. (1). AND WHEREAS the said (mort- MORTGAGES dition for making void the same, on payment of (1) Of the recitals, see ante, No. IV. n. (1). Recitals. If the mortgage be made in pursuance of a prior agreement, Prior see ibid. n. (2). (2) If part of the premises be copyhold, add, "And seised to him and his heirs according to the custom of the manor of lands and hereditaments hereinafter covenanted to be surrendered." of the customary or copyhold ment. agree Copyholds. (3) If the loan be of money in the funds, see ante, No. IV. Loan of stock, n. (3). (4) If the mortgagor have obtained a licence for demising the Copyholds. copyhold part of the premises, add, "AND WHEREAS the said (mortgagor) is authorised to demise the said customary or copyhold premises by virtue of a licence or consent under the hand of the lord of the said |