But these considerations seldom deter intending mortgagees from advancing money for raising portions, as the amount raiseable for that purpose is generally inconsiderable in proportion to the value of the land charged, so that the land alone is a sufficient security for the amount raised. Moreover, such mortgages offer the advantage, especially to trustees advancing money, that they afford an investment which is likely to be permanent, as well as amply secured. Chap. XXIII. § 5 (iv). owner in fee If, however, the tenant for life or other owner of the estate is Form where able and willing to concur in the mortgage deed, the mortgage or for life, &c. need not be made in exercise of the power, but may be made in concurs. any manner the parties please; for the owner, if seised in fee, can obviously raise the money in any way he thinks convenient, and on receipt of the portions by the persons entitled thereto, the charge and the term will cease and determine. And, if the owner is only a tenant for life or other limited owner, then, inasmuch as the portions though not actually raised are an "incumbrance" on the property, he can, under his statutory power (p), mortgage the settled lands or any part thereof by a conveyance of the fee or by demise, as he thinks most convenient for the purpose of extinguishing the charge. The most usual form which a mortgage for raising portions appears to take, where the owner of the estate concurs, is that of a mortgage by the trustees of the term to the person advancing the money, with a covenant by the owner of the estate for keeping down the interest, sometimes extending also to the payment of the principal; the money raised being paid, by the direction of the trustees, to the portionist who joins for the purpose of acknowledging the receipt of the money (7). The concurrence of the portionist, though usual and convenient, is not essential, and may often be safely dispensed with (»).. Sometimes the manner adopted for raising a portion by mortgage is, that the portionist shall assign to the mortgagee his share of the sums to be raised, and give the mortgagee a power of attorney to receive it: then the tenant for life, if the term is reversionary, makes a demise of a proportional part of the estate to the mortgagee for ninety-nine years, if the tenant for life the mortgagee shall not have a power 54 Vict. c. 69), s. 11. (9) Dav. Conv. (4th ed.) vol. ii. pt. ii. p. 462, n. (r) Bythewood & Jarman, Conv., 4th ed. vol. iii. p. 1041, n. Chap. XXIII. § 5 (iv). Whether mortgage of portion term should be by assignment or demise. shall so long live, upon trust to permit the tenant for life to receive the rents until default is made in payment of the interest, and then to receive the rents and retain the interest. The trustees of the term assign a proportional part of the premises comprised in the term to the mortgagee, and there is introduced a proviso for redemption by the tenant for life, or persons in remainder, on payment of the portion and costs, &c. The tenant for life, or (if the term is in possession) the remainderman (if he will concur), covenants for the payment of the money and for the title (s). The mortgage of the term is usually by assignment of the whole term, but sometimes it is made by demise of a part of the term, with a proviso for cesser on payment of the mortgage money (t). As the term is not burdened with any rents or onerous covenants or obligations, the only advantage of a demise is, that it saves the necessity for a re-assignment or surrender on redemption. (s) See Coote on Mortgages, 5th ed. vol. i. pp. 296, 297. (t) See p. 225. Prior's Conveyancing, CHAPTER XXIV. MORTGAGES BY ECCLESIASTICAL CORPORATIONS. and tithes. i.-Mortgages by Ecclesiastical Person of Profits of Benefice to Rectories secure his own Debts.-Rectories impropriate and tithes in lay hands may be the subject of mortgage in like manner as any other species of real estate. benefice. There exists no rule of public policy, independent of restrain- Mortgage of profits of ing statutes, which prevents an ecclesiastic from dealing with ecclesiastical his temporalities (a). By 13 Eliz. c. 20, it was enacted, that "all chargings of any 13 Eliz. c. 20. benefice with cure thereafter, with any pension or with any profit out of the same to be yielded and taken, thereafter to be made, other than rents to be received upon leases thereafter to be made, according to the meaning of that Act, should be utterly void." By 3 Car. I. c. 4, s. 2, this Act was made perpetual. c. 99. By 43 Geo. III. c. 84, 13 Eliz. c. 20 and 3 Car. I. c. 4, s. 2, 57 Geo. III. were wholly repealed. The 57 Geo. III. c. 99 repealed 43 Geo. III. c. 84, and also repealed part of 13 Eliz. c. 20, but did not repeal in terms the clause relating to the charging of livings. The 57 Geo. III. c. 99 was repealed by 1 & 2 Vict. c. 106, s. 1, except such part as repealed any former Acts; and 1 & 2 Vict. c. 106, s. 1, has been repealed by 37 & 38 Vict. c. 96; 37 & 38 Vict. but the effect of all these repeals is that 13 Eliz. c. 20, so far as relates to charges on benefices, is still in force (b). A mortgage of pew rents by a vicar of a district church is void under the Act of Elizabeth (c). A lease of a rectory and tithes and a receivership deed thereof, being a contrivance to (a) See Grenfell v. Dean and Canons of Windsor, 2 Beav. 544. (b) See Hawkins v. Gathercole, 6 De G. M. & G. 1, at pp. 20, 21; Garnett v. Bradley, 3 App. Ca. 944, at pp. 950, 951. (c) Exp. Arrowsmith, 8 Ch. D. 96, C. A. c. 96. What securi ties are void under the Act. Chap. secure a charge, were held void (d). XXIV. (i.) clergyman in consideration that his Charge by prebendary. Benefice with cure. A composition with a future income may be received by a trustee, and applied in liquidation of his debts after providing for a curate, is void (e). By the Land Transfer Act, 1897 (f), an incumbent of a benefice who is registered proprietor of land cannot create a lien on it by deposit of the land certificate (f). Where a manor or rectory is specifically allotted to a prebend, the prebendary has power to charge it (g). So he may alien any property attached to the office without losing his stall or voice in the chapter (h). So the lands and emoluments attached to a canonry (which is an ecclesiastical office without cure), can, it seems, form the subject of a charge or mortgage (i). But a mortgage by demise of the lands, messuages, &c., belonging to a canonry of St. George's Chapel, Windsor, was held, in the lastmentioned case, not to pass a house in which the canon lived, the house in question being vested in the dean and chapter, and not attached to the canonry, but liable to be exchanged for the house of another canon in the event of a vacancy among the canons, each canon thus taking the temporary use of any particular house for the purposes of residence (); but the canonry itself, as an ecclesiastical office, or even the prebendary, since 13 & 14 Car. II. c. 4 (with two exceptions), cannot, it seems, be the subject of a grant (k). Where a scheme confirmed by Order in Council under the Pluralities Amendment Act, 1850 (7), and the Union of Benefices Act, 1860 (m), provided that two city benefices should be united, and that the incumbent retiring in order that the union should have immediate effect should receive out of the annual income of the united benefices certain annuities during the joint lives of himself and the incumbent of the united benefices so long as he should perform the duties of curate thereof, under the title of vicar-in-charge, with a further provision after the death of the incumbent of the united benefices, it was held that the (d) Waltham v. Crafts, 6 Exch. 1. (f) 60 & 61 Vict. c. 65, s. 15; ante, (g) Hare v. Bickley, Plow. 526; Doe v. Musgrave, 1 Man. & Gr. 631. (h) Dean and Chapter of Norwich Case, 3 Rep. 73, 75, b; see Com. Dig. Eccl. "Persons," C. 4. (i) See Doe V. Musgrave, sup. ; Grenfell v. Dean of Windsor, 2 Beav. 544. (k) Doe v. Musgrave, 1 Man. & Gr. 631. (7) 13 & 14 Vict. c. 98. Chap. effect of such provisions was not to give to the retiring incumbent a "benefice with cure " within the meaning of the statute XXIV. (i.) 13 Eliz. c. 20, and that he could accordingly make a valid mortgage of the annuities (n). Where an incumbent pays off the land tax he has a security Redemption on the living if he exercises the option given by the Land Tax of land tax. Acts (o). void. A charge on a church living, if made subsequently to Charges on 57 Geo. III. c. 99, is void (p); but not so, if made in the church livings intermediate period between the passing of 43 Geo. III. c. 84, and 57 Geo. III. c. 99 (7); and where a term to secure an annuity was created in the living prior to the latter statute, but assigned subsequently to it, to secure a sum advanced to redeem the annuity, or to secure a fresh annuity granted in consideration of such sum (), such assignment was held valid; and such term may be assigned as a security for a much larger annuity or sum (s); and if in a deed of charge made in the intermediate period, there is a covenant to charge any living subsequently acquired, and an exchange is made prior to the revival of 13 Eliz. c. 20, the charge on the newly-acquired living will be valid, although the new grant is dated subsequently to the statute 57 Geo. III. c. 99 (t). The Irish Act, 10 & 11 Car. I. c. 3, does not render invalid a charge on a benefice during the life of the grantor, but only prevents it from binding his successor (u). Though the charge is void, collateral securities—e.g., covenants, bonds, and warrants of attorney-to secure the debt, are valid, as the transaction is not malum in se (x). indirectum. A charge on a church living which cannot, since 57 Geo. III. Charge per c. 99, be created per directum, cannot be created per indirectum. And therefore a warrant of attorney reciting the annuity deed, and that the warrant is executed to the intent that a sequestration may be obtained by the annuitant and continued during (t) Metcalfe v. Archbishop of York, 1 My. & Cr. 547. (u) Wise v. Beresford, 3 Dr. & War. (x) Mouys v. Leake, 8 T. R. 411; B. |