CHAPTER XIII. What passes by the word 66 'manor." Mortgagor may hold courts. Purchase of coppholds by lord after mortgage of manor. Receiver. Right of mortgagor OF MORTGAGES OF INCORPOREAL HEREDITAMENTS. i.-Mortgage of Manor.-The word "manor" has a wide signification, including (i) the demesne lands of which the lord is seised within the manor; (ii) the freehold of all lands held by copyholders within the manor; (iii) waste lands; (iv) all heriots, fines, rents, suits, and services; (v) courts baron, courts leet, and other franchises (a). Customary freeholds held of a manor are not parcel of a manor, though the rents and services issuing out of such lands will pass by grant of a manor. An advowson appendant to a manor will pass by conveyance of the manor (b). The mortgagor of a manor, while in possession, may, it seems, hold courts (c). A mortgage of a manor will carry with it copyholds of that manor subsequently purchased by and surrendered to the lord (d); and the mortgagee is entitled to all accretions of the property (e). A receiver may be appointed of a manor (ƒ). ii.—Mortgage of Advowson.—An advowson is not an eligible security for money advanced, as it yields no profits out of which the interest can be kept down, and the policy of the law has imposed serious restrictions on the rights and remedies of a mortgagee of this kind of property. Though the legal right to present to the benefice, whether (a) Cru. Dig. tit. xxxii. ch. 21. Scriv. Cop. (4th ed.) 43; (5th ed.) 6. (f) Thelluson v. Woodford, 13 Ves. 209; Seton, 767. appendant or in gross, is vested in the mortgagee (g), he can Chap. XIII. make no profit thereby, so as to renew or lessen the debt, not (ii.) only because such a transaction would be void on the ground of to nominate simony, but also because, until foreclosure or sale, the mort- incumbent on gagee is but in the nature of a trustee for the mortgagor, who has a right to nominate, and may, in equity, compel the mortgagee to present the person so nominated (), notwithstanding an express agreement to the contrary (i). If the mortgagee presents, and his clerk is inducted, the mortgagor may bring his action to compel resignation, but the action must be brought within six months from the death of the last incumbent, or it will be dismissed (k). vacancy. not exercise It is obvious, therefore, that an advowson can only be made Power of sale available as a security by means of a power of sale, which, able during however, even if made under the direction of the Court, cannot vacancy. be exercised during a vacancy so as to confer the right to present from that turn, contrary to the law of simony (7). But the power may be exercised if the benefice is not actually vacant, though a vacancy is known to be pending. So, where an advowson was sold after the incumbent had accepted another living, it was held that the original benefice, being voidable only, and not actually void, the next presentation was not dissociated from the advowson (m); and it has been held that the knowledge on the part of the purchaser of an advowson that the incumbent is on the point of death does not make the sale simoniacal (n). It may be well to insert in a mortgage of an advowson a declaration that the statutory power of sale shall be exerciseable provided the incumbency shall then be full, and not otherwise. iii.—Mortgage of Rectories Impropriate and Tithes.-Rectories impropriate and tithes or tithe rentcharge in lay hands may be mortgaged in like manner as any other kind of real estate. Incumbrancers of tithes are not affected by statutory merger Merger of of the tithes so as to give the incumbrancers of the lands in (g) Dyer v. Lord Craven, 2 Dick. 662; Croft v. Powell, Com. Rep. 609. (h) Jory v. Cox, Prec. Ch. 71; Amhurst v. Dawling, 2 Vern. 401. (i) Mackenzie v. Robinson, 3 Atk. 559. See Gally v. Selby, Stra. 403. (k) Gardiner v. Griffith, 2 P. Wms. 404; Mutten v. Chancel, 1 Mer. 493. (1) Bishop of Salisbury v. Wolferston, 3 Burr. 1504; Mirehouse v. Rennell, 1 Moo, & Sc. 683. (m) Alston v. Attlay, 7 A. & E. 289. (n) Barton v. Glubb, Dick. 516; Fox v. Bishop of Chester, 1 Dow & C. 416. tithes. Chap. XIII. which the tithes are merged any priority over the holders of incumbrances affecting the tithes before the merger (0). (iii.) Statutes of Limitation. The law relating to rectories impropriate and tithes has received great emendations by Acts of Parliament passed for limiting the periods for making claim to such species of property; prior to such statutes, the rule prevailed, nullum tempus occurrit ecclesiæ, so that it was, in all cases of claim to impropriate tithes, necessary to show by what means the tithes came into lay hands; and, in cases of claim of exemption from tithes, to show the origin of such claim (p). But it is not now necessary to show the legal origin of the claim (9). The mere non-payment, for the prescribed period, where done adversely and of right, establishes a new ground of exemption (r). But the non-payment must be a total non-payment of tithes of every kind (s), and the consent or agreement in writing capable of defeating the evidence arising from the non-payment of tithe, or payment of modus, must cover the whole or some part of the period set up by the tithe-payer (t). And in a case in the Exchequer, the Court held that the claim of a modus from time immemorial might be pleaded notwithstanding the statute, and be supported by the same evidence that would have been sufficient before the statute, though not extending over so long a period as that named in the statute (u). It has been likewise held that the same Act does not apply where the title to the tithes is in dispute, and not the liability to pay them (r). In like manner, 3 & 4 Will. IV. c. 27, only applies as between adverse parties claiming an estate in the tithes (not being tithes due to a spiritual or eleemosynary corporation sole), and does not bar the tithe owner from recovering tithes as chattels from the occupier, although none have been set out for the space of twenty years (y). The Act 2 & 3 Will. IV. c. 100, is unaffected by the provisions of 3 & 4 Will. IV. c. 27; the interpretation clause of the (0) 2 & 3 Vict. c. 62, s. 1; 9 & 10 Vict. c. 73, s. 19. (P) See 2 & 3 Will. IV. c. 100, as to moduses and compositions real: 6 & 7 Will. IV. c. 71, as to impropriate tithes; and 41 & 42 Vict. c. 42, as to computation of tithes. (9) Salkeldv. Johnston, 14 Jur. Pt. I. 1. And see Champneys v. Buchan, 4 Drew. 104. 99. (r) Fellows v. Clay, 3 G. & D. 406. (u) Earl of Stamford v. Dunbar, 13 M. & W. 822. (x) Knight v. Marquis of Waterford, 15 M. & W. 419. (y) Dean of Ely v. Cash, 15 M. & W. 617. (iii.) latter Act, although enacting that the word "land" shall, in Chap. XIII. its meaning, extend to tithes, has reference to an estate in tithes, and not to tithes as a chattel; and sect. 2, therefore, does not embrace the case of a render of tithes as a chattel by the person bound to pay to the tithe owner (≈). Actions for tithes must be brought within six years from the time when such tithes became due (a), and the defendant may avail himself of the Act without pleading it (b). iv.-Mortgage of Rentcharges.-A mortgage may be made Form of of a subsisting rentcharge, or of a rentcharge created at the mortgage. time and for the purposes of the security. In the former case the form of the mortgage will not materially differ from that of a mortgage of land, and the same form may be adopted in the case of a newly-created rentcharge, but in such cases the form of the security is more commonly that of an absolute grant of the rentcharge with power of repurchase (c). The statute 3 & 4 Will. IV. c. 27, s. 42, provides that no Arrears of arrears of rent are to be recovered after more than six years rentcharge. from the time at which they become due, or an acknowledgment in writing is given by the debtor. This provision was apparently intended to apply exclusively to rentcharges, and not to other rents (d). remedies. By the Conveyancing Act, 1881 (e), s. 44, the insertion in Statutory grants of rentcharges of powers of distress and entry, and of limitations of terms to trustees to secure rentcharges, are rendered unnecessary. When the mortgage is of a subsisting rentcharge, it will be well for the mortgagee to take a power of attorney from the mortgagor, so as to enable him to enforce these rights and remedies against the land out of which the rentcharge issues. (2) Dean of Ely v. Bliss, 2 De G. M. & G. 459. (a) 53 Geo. III. c. 127, s. 5. (b) Goode v. Waters, 20 L. J. Ch. 72. (e) See as to annuity deeds, ante, pp. 36 et seq. (d) Paget v. Foley, 3 Sc. 120. (e) 44 & 45 Vict. c. 41. See these provisions set out in full, ante, p. 38. Meaning of "chattels." Securities on chattels. CHAPTER XIV. OF MORTGAGES OF CHATTELS. SECTION I. OF THE NATURE AND INCIDENTS OF MORTGAGES OF CHATTELS GENERALLY. i.-Introductory Remarks.-In its widest sense, the expression "chattels" means all personal property, including leasehold and like interests in land which are known as chattels real, and debts and other choses in action, as well as goods capable of being transferred by actual delivery, which are often distinguished by the title "chattels personal." In a more usual and restricted sense the expression "chattels" is used to denote only the latter kind of personal property, and it is in this sense that the word is used in this present Chapter. Chattels may be made the subject of a security for a loan or debt, either by mortgage or by pledge. A mortgage of chattels, like a mortgage of land, passes the property therein to the mortgagee, subject to redemption. The goods may, like any other mortgaged property, be retained, as is usually the case, by the mortgagor, in which case, as will be seen hereafter, the validity of the mortgage will depend on its conformity with the requirements of the Bills of Sale Acts, 1878 and 1882 (a). Independently of those Acts, or of the inferences to be drawn therefrom (b), a mortgage of chattels might have been made by assignment contemporaneous with or subsequent to delivery of the goods to the mortgagee (c). But it is somewhat doubtful how far, having regard to the provisions of those Acts, such transactions can be validly effected at the present day (d). (a) 41 & 42 Vict. c. 31; 45 & 46 Vict. c. 43; the provisions of these Acts are considered post, pp. 199 et seq. (b) See Great Northern Rail. Co. v. Coal Co-operative Soc., (1896) 1 Ch. 187. (c) The delivery may be actual or constructive. See post, Chap. LXIII., Sect. I. (ii). (d) See this question discussed post, p. 202. |