Mortgagor to (Full Form.) Grant of title deeds. MORTGAGES remainder and remainders, of and in the same hereditaments, and premises, and all and singular Mortgagee in fee. the yearly and other rents, issues, and profits thereof. AND all the estate, right, title, interest, use, trust, property, term and terms for years, and for life or lives, possession, claim, and demand whatsoever, both at law and in equity, of him the said (mortgagor) in, to, upon, out of, or concerning the same [Together with all deeds (1), muniments, instruments, counterparts of leases, writings, agreements, and other evidences of title whatsoever, which in any wise relate unto or affect the said hereditaments and premises, or any of them, or any part thereof, which now are or hereafter shall or may be in the custody or power of him the said (mortgagor) his heirs or assigns, or of any other person or persons from whom he or they can or may procure the same without action or suit, at law or in equity, [and whether Title deeds. (1) A mortgagee should be very careful to have the title deeds delivered to him, as otherwise (except under particular circumstances, Peters v. Russel, 1 Eq. Ca. Ab. 321, pl. 7; Tourle v. Rand, 2 Bro. Ch. Ca. 650,) his security will be in danger of being postponed to that of a subsequent incumbrancer, who may obtain possession of them; for if a mortgagee lend his money, leaving the deeds in the hands of the mortgagor, he is tacitly privy and aiding to any future mortgage; see Goodtitle d. Norris v. Morgan, 1 Durn. and E. 755; Ryal v. Rowle, 1 Ves. 348. 375. 1 Atk. 165. Beckett v. Caudley, 1Bro. Ch. Ca. 353, sed vide Head v. Egerton, 3 P. W. 281; and Evans v. Bicknell, 6 Ves. 183. where the rule is less strictly considered, and the court said, that such negligence in the first mortgagee, in suffering the mortgagor to retain the deeds, would not alone postpone him, but that it must have been done with a view of fraud. Mortgagor to Mortgagee in fee. (Full Form.) TO HOLD to the fee simple. the same are enumerated or mentioned in a sche- MORTGAGES dule hereunder written (1) or not.] TO HAVE AND TO HOLD the messuages, lands, tenements, hereditaments, and all and singular other the premises hereinbefore, or in the said indenture of bargain mortgagee in and sale described, and hereby granted and released, or otherwise assured or intended so to be, with their and every of their rights, members, and appurtenances, unto the said (mortgagee) his heirs and assigns, and to and for the proper use and behoof of him the said (mortgagee) his heirs and assigns for ever (2); BUT SUBJECT nevertheless to the proviso, condition, or agreement for redemption of the said premises hereinafter contained (3), that is to say, PROVIDED ALWAYS, [and Proviso for rethese presents are upon this express condition reconveyance. (4)], and it is hereby declared and agreed to be demption and (1) See the form of this schedule, post, p. 60. This general Schedule. grant of all deeds, &c. in any wise relating to the premises without being confined as in purchase deeds to such as relate to those alone, or in common with others of inferior value, seems to be founded on the same arbitrary spirit in the mortgagee as is noticed in a subsequent page; see post, p. 49, n. (1). (2) If the premises consist principally of houses or other Insurance. buildings, the mortgagor should insure previous to the execu tion of the deed, and assign the policy. See the form of such assignment, post, No. IV. rider (A). (3) The court will not suffer the equity of redemption to be Redemption. clogged with any agreement between the mortgagor and mort gagee, beyond that of payment of principal and interest; Jen nings v. Ward, 2 Vern. 520. (4) In all the ancient, and in most of the modern precedents, Proviso for rethe proviso for redemption is in the form of a condition. The demption. effect of which is, that on performance of such condition, by Mortgagor to (Full Form.) MORTGAGES the true intent and meaning of the said (mortgagor) and (mortgagee) respectively, that if the Mortgagee in fee. said (mortgagor) his heirs, executors, administrators (1), or assigns, [or any other person on his or their behalf (2),] do and shall well and truly pay Defeazance. Mortgage personalty, Stock. payment of the money borrowed at the time appointed, the estate will revert back to the mortgagor, as of his former estate, without the necessity of a reconveyance; but, on the other hand, should the mortgagee assign his mortgage to another, before the day 'appointed for payment, and the mortgagor should pay the money to the mortgagee on the day (which is a possible case) the effect would be to revest the estate in the mortgagor, and defeat the security of the assignee; which has induced a practice amongst conveyancers to strip the proviso of its conditional form, and convert it into an agreement to convey on payment of principal and interest. But as it scarcely ever happens that the money is paid on the day, nor in general intended that it should be, and as it cannot be supposed that the mortgagor would repay the money without having the securities delivered up by the mortgagee, there seems to be but little, if any, utility in this deviation from the ancient usage. The defeazance upon a mortgage was anciently by a separate instrument, see Bac. Tracts, 37: but it is now generally contained in the deed creating the estate to be defeated, which is unquestionably preferable, as if it were by a separate deed, and such should be lost, it might be difficult for the mortgagor to prove his right of redemption; and see Cotterell v. Purchase, Ca. T. Talb. 64, Baker v. Wind, 1 Vez. 160. (1) A mortgage is in equity only a personal debt by specialty, and the mortgagee has no interest beyond it, Brown v. Gibbs, Prec. Ch. 99, and the land is regarded only as a pledge for payment; the mortgagee may therefore take his remedy either against the heir or executors, Galton v. Hancock, 2 Atk. 435; Cope v. Cope, 2 Salk, 449; Magnell v. Howard, Prec. Ch. 61; King v. King, 3 P. W. 358. (2) If the loan be of money in the funds, see post, No. IV. n. (9). Mortgagor to (1), or cause to be paid unto the said (mortgagee) MORTGAGES his executors, administrators (2), or assigns, at or in the common dining hall of the Inner Temple, Mortgagee in fee. (Full Form.) London (3), between the hours of twelve and two confined to mortgagor. (1) The right to redeem is not confined to the mortgagor and Redemption not his representatives, but extends to every person having any interest in the premises, as a tenant under the mortgagor, tenant by elegit, or staple, by the courtesy, in dower or jointure, see cases cited, 1 Fonb. Eq. 267, n. (p); so a judgment creditor, Burden v. Kennedy, 3 Atk. 739, Sharpe v. E. Scarborough, 4 Ves. 542, provided he has taken out execution, Shirley v. Watts, 3 Atk. 200: but a person claiming to redeem a mortgage must show a title, Lomax v. Bird, 1 Vern. 182; but though the conveyance to him be voluntary, it will be sufficient for that purpose, Howard v. Harris, 1 Vern. 190; so that he possess the legal estate, Franklyn v. Fern, Barn. Ch. Ca. 30, 32. (2) Where the mortgage money is made payable either to the heirs or executors, the mortgagor may at or before the day appointed pay to either, but after the day is past, it must be paid to the executors, because it came out of the personal fund; Rightson v. Overton, 2 Freem. 20; Thornborough v. Baker, 1 Ch. Ca. 283. administrators." And upon the decease of the mortgagee whether before or " Executors and after forfeiture, and whether the mortgage was for years, or in fee, the mortgage money is regularly payable to his executors or administrators; Winne v. Littleton, 2 Ch. Ca. 51. But it may be made payable to his heirs by express declaration to that effect, in which case on the death of the mortgagee before the day appointed for payment, the money must be paid to his heir and not to his executors, for designatio unius personæ, est exclusio alterius. See Lit. s. 339; Co. Lit. 210; sed vid. ib. 208, b. n. (1); 1 Vern. 170. (3) A sum due upon mortgage being collateral only to the Place of payland, it must be tendered to the person of the mortgagee, (if he ment. be in England,) unless some certain place be appointed, Lit. s. 340; Co. Lit. 210, b.; Shrapnel v. Blake, 229, Ca. Ab. 603, pl. 34; Gyles v. Hall, 2 P. W. 378. To avoid this inconvenience, MORTGAGES of the clock in the day-time (1), the full and just money sum of £ of lawful Mortgagor to of that part of Mortgage in fec. the United Kingdom of Great Britain and Ire(Full Form.) land called England, with interest for the same at and after the rate of £5 (2) of like lawful money Time of pay ment. Rate of interest. therefore, it is usual to appoint a place for the repayment of the money, in which case the mortgagor is not obliged to seek the mortgagee elsewhere, 1 Roll. Ab. 445, X. pl. 2; and if the mortgagee intend to take advantage of the default in payment on the day, he should attend by himself or an agent at the place and time appointed to receive the money. But after forfeiture the money must be tendered to the mortgagee in person, and not at the place mentioned in the proviso; see 2 Ca. Op. 61. (1) It is necessary to appoint a time for the payment of the mortgage money, as otherwise the condition will continue open and the estate be redeemable at any time, Kemp v. Wartbrooke, 1 Ves. jun. 279, even after twenty years possession by the mortgagee, Howel v. Price, Prec. Ch. 423; 1 P. Wms. 291; Yates v. Hambley, 2 Atk. 263, which in analogy to the time limited for ejectments at law is held to be a bar in equity, Yates v. Hambley, 2 Atk. 362, Miller v. Lees, ib. 496, Proctor v. Oates, ib. 140, and see 17 Ves. 99. And after tender of the mortgage money at the place and time appointed, (or afterwards upon reasonable notice given,) the interest will cease, Manning v. Burges, 1 Ch. Ca. 29; Austin v. Dodwell's Executors, 1 Eq. Ca. Ab. 318, pl. 9; Egles v. Hall, 2 P. W. 378; Shrapnell v. Blake, 2 Eq. Ca. Ab. 603, pl. 34. (2) No more than 5 per cent. interest can be reserved on a mortgage of lands in England and Wales, see 12 Ann. st. 2, c. 16, s. 1; 3 Atk. 154. But interest not exceeding 6 per cent. may be taken for money lent upon mortgage of lands in Ireland, or the West India colonies or plantations, so that the securities be executed in Great Britain, the sum lent do not exceed the value of the land, and the mortgage be duly registered, as is required by the laws of the place where the land is situated, see 14 Geo. III. c. 79, s. 2; but this being an enabling act, and therefore to be strictly construed, has been held not to extend |