Freeholds with
Power of Sale.

mortgagee under the faith of a sale which he may have MORTGAGES difficulty in perfecting? and even should the one consent to lend, and the other to buy, yet both will consider the value of the estate as diminished in an equal amount with (Full Form.) the value of the usual title covenants, and abate in the amount of the loan or bidding accordingly: and, after all, where is the hardship of requiring a mortgagee to enter into covenants, qualified and limited to his own acts, when he has previously taken from the mortgagor general covenants as against all the world?—covenants, too, which amount to no more than this-that, for any thing he has done to the contrary, he has a right to sell and convey, that the purchaser shall enjoy the estate free from any disturbance by him, or others claiming under him, and that he and all such persons will, at the purchaser's expense, do all such further acts as shall be reasonably required of him, to secure the uninterrupted enjoyment of what he has sold, and for which he has received the value,- than which nothing surely can be more reasonable."

But, notwithstanding these observations, which I have thought it right to submit to the student, I feel myself bound in candour, (in order to prevent his being misled by any incorrectness in my present view of the subject, or by the note subjoined to a former precedent, ante, Vol. II. p. 456), to acknowledge, that upon a consultation I lately had with the gentleman above alluded to, in conjunction with another very eminent practitioner, they both concurred in a different opinion, and held, that a mortgagee selling under the power in question could not be required to enter into any other covenant than that he had not encumbered.

462

MORTGAGES

Freeholds with Power of Sale. (Concise Form.)

No. XXI.

Mortgage in Fee of Freehold Hereditaments for securing a Sum lent, with Power of Sale in Case of Default (1). (Concise Form.)

Variations where Part of the Premises are Copyhold. Where the Mortgagor took the Estate, with Limitation to a Trustee to bar Dower.

Where the Wife of the Mortgagor is a Party.

Where the Mortgagor is Tenant in Tail.

Where Tenant for Life.

Where Tenant in Reversion.

Where of a Moiety, &c.

Where subject to a prior Mortgage (2).

Other Variations as in the Margin below.

Parties.

Power of sale.

Equity of redemption.

Notes, &c.

(1) On the effect of this power of sale, see ante, p. 234, notes, 252, n. (2), and p. 455, rider (B), also INTRODUCTION.

(2) If the premises be already in mortgage, and the mortgagor has an equity of redemption only in the premises, see ante, No. X. p. 233, and notes there.

(3) For notes on the different parts of this precedent as a mortgage, see ante, p. 32, et seq. also post, Vol. VI. No. IV. p. 398, et seq.

hereditaments hereinafter described) of the one MORTGAGES part, and (the mortgagee) of, &c.

(Concise Form.)

(mortgagee Freeholds with of the said hereditaments) of the other part (1). Power of Sale. WHEREAS, &C. (2). AND WHEREAS (3) the said (mortgagor) has agreed with the said (mortgagee) for the loan to him of the sum of £

to

be repaid with interest after the rate of £5 per cent. per annum, at the time hereinafter mentioned, and in the mean time secured, [by the bond (4) of the said (mortgagor), and] by such conveyance of the lands and hereditaments hereinafter described, with such powers as hereinafter are expressed; [and in part execution of the said

(1) If the mortgagor took the estate with limitations to a Dower-trustee. trustee to bar dower, make such trustee of the second part, and

the mortgagee of the third part.

If the wife be a party, make her so with her husband, of the Wife.

first part.

If the mortgagor be tenant in tail, see ante, No. VII.

p. 165. Tail. (2) Here may be recited the mortgagor's title to the premises Recitals of title. intended to be mortgaged, as,

"Whereas the said (mortgagor) is seised in his demesne

as of fee, by descent from his ancestors, [or as a bona fide purchaser] of the messuages, lands, and hereditaments hereinafter described."

And see ante, p. 417, n. (2).

(3) If the mortgage be made in pursuance of a previous Previous agreewritten agreement, such agreement may be here recited, as

ante, p. 415, note.

ment.

If the mortgage be made in pursuance of a power of appoint- Dower-trustee. ment to bar dower, recite here the deed by which it was limited

to the mortgagor, as ante, p. 154, and post, No. XXVII.

(4) As to a bond being given, see ante, p. 32, n. (1).

Bond.

Freeholds with

MORTGAGES agreement, the said (mortgagor) hath this day executed a certain bond or obligation in writing, bearPower of Sale. ing even date herewith, conditioned to be void (Concise Form.) on payment of the said sum and interest, at the time and in the manner hereinafter mentioned.] in consideration NOW THIS INDENTURE WITNESSETH, that in [further] pursuance of the said agreement, and for and in consideration (1) of the sum of £

WITNESS, that

of the money

lent.

of lawful money of that part of the United King-
dom of Great Britain and Ireland called England,
to the said (mortgagor) in hand well and truly
paid (2) by the said (mortgagee) at or before the
sealing and delivery of these presents, the receipt
whereof the said (mortgagor) doth hereby ac-
knowledge, and of and from the same doth ac-
quit, release, and for ever discharge and exonerate
the said (mortgagee) his executors and admini-
strators, by these presents, and the receipt here-
upon indorsed, and which said sum of £
is the same sum of £ as is mentioned in the
condition of the said in part recited bond.} He
the said (mortgagor) HATH (3) granted, bargained,

(1) If the consideration be a transfer of money in the funds, see ante, p. 419, n. (2).

If the consideration be bills of exchange, instead of money, see ante, p. 126.

If part of the consideration money has been previously advanced, see ante, p. 419, n. (2).

(2) If the consideration be a debt previously owing by the mortgagor to the mortgagee, see ante, p. 420, n. (1).

(3) If the estate was limited to the use of the mortgagor's appointment, in order to bar dower, and such appointment is intended to be exercised, add as ante, p. 155; but if the power

Freeholds with

(Concise Form.)

sold, aliened, and released, and by these presents MORTGAGES DOTH grant, bargain, sell, alien, release, and confirm unto the said (mortgagee) and his heirs, Power of Sale. ALL (1), &c. or howsoever otherwise the said messuages, lands, and hereditaments, or any part thereof, now are or is, or at any time heretofore were or was tenanted, described, known, or distinguished. Together with all out-houses (2), buildings, rights, privileges, easements, and appurtenances whatsoever to the said hereditaments, or any part thereof, belonging, or in any wise appertaining, or reputed so to be, or with the same, or any part thereof, now or heretofore usually

of appointment is not intended to be exercised, see post, No. XXVII.

If the mortgagor be tenant in tail, see and add, as ante, p. Tail. 168. 171, et seq. also post, Vol. VI. p. 435.

(1) Here describe the subject of the conveyance by its ancient Parcels. and present name, situation, tenancy, &c. and see ante, p. 33,

n. (2).

If the mortgage be of a moiety, &c. see ante, p. 263.

If of a reversion, see ante, p. 217.

If of an estate for life, see ante, p. 192.

Moiety.
Reversion, &c.

Life.

If the mortgagor's title has not been recited, add after the If no recital of description of the parcels,

"Which said messuages, lands, and hereditaments, were formerly the estate and property of C. B. late of, &c. from whom they were purchased by the said (mortgagor) for a valuable consideration, or by whom they were devised to the said (mortgagor), or from whom they descended to and are now vested in the said (mortgagor) as his heir at law."

title.

(2) Make these general words correspond with the nature of General words. the subject of conveyance, and see general words applicable to the different kinds of real property, INDEX, voce General Words.