and interest by a given day, the original term should be at an end, upon which the derivative term would also cease. This mode of mortgage is also nearly obsolete; but if an estate be in hand, and there is a wish to obtain a power of distress for payment of the interest of the mortgage debt, an underlease might still be resorted to. It would, however, it is apprehended, require the duty to be paid as on a bona fide lease.

CHAPTER X.

in trust.

In some cases the lands were conveyed to a trustee in fee, Conveyance with a proviso authorizing him to distrain on the lands in the mortgagor's possession, in case the interest shall be in arrear for a given time, with a further declaration appointing the trustee receiver during the time the lands shall be in lease.

Or sometimes the mortgagor gave a power of attorney to Warrant of confess judgment in ejectment in case the interest shall be in attorney. arrear, with a covenant to appoint such person a receiver as the mortgagee shall name, in case the lands shall be let.

freeholds for

Mortgages of freeholds were formerly often, and are still Mortgage of occasionally, effected by demise for a long term of years, a term of attended with a condition in the same deed, that, if the prin- years. cipal and interest be paid within a given time, the lands shall be reconveyed; or that the deeds of mortgage shall be void, or that the term shall cease and determine.

If the mortgage be by term of years, a covenant is usually Form of inserted on the part of the mortgagor, that, after default made, a term. mortgage for he or his heirs will, at his own cost, do all lawful acts for confirming the term, or, if required, for conveying the reversion in fee to such persons as the mortgagee, his executors, administrators, or assigns shall direct; for otherwise, the mortgagee would, on foreclosure, obtain a chattel interest only, and not the fee. But if the term, having no rent incident to the reversion, was originally of not less than 300 years, of which not less than 200 years are unexpired, a mortgagee, having by foreclosure extinguished the right of redemption affecting the term in favour of the mortgagor, may, in the absence of such a covenant, by deed, enlarge the term, and so acquire the land in fee simple (c).

A benefit which formerly resulted from the mortgage being, in the first instance, for a term of years, and not in fee, was that the security and debt devolved together; but, if the

(c) 44 & 45 Vict. c. 41, s. 65.

CHAPTER X.

Mortgages

for terms now unusual.

mortgage was in fee, the land descended to the heir as a trustee for the executor, and the debt vested in the executor, which, in case of the infancy or absence of the heir, created inconvenience (d). This inconvenience was remedied by a late Act (e), which enabled the personal representative of a mortgagee, on being paid, to reconvey the legal fee. This enactment has been repealed by the Conveyancing Act, 1881 (f). In cases of deaths after the commencement of the last-mentioned Act, by s. 30 of that Act, an estate or interest of inheritance, or limited to the heir as special occupant, in any hereditaments vested in a sole mortgagee, devolves on his personal representative.

A disadvantage of a mortgage for a term is, that the mortgagee, unless by special stipulation, is not entitled to the custody of the title deeds (g). In modern practice, mortgages for a term are almost universally abandoned, except where it is desired to raise money on the security of an estate tail without barring the entail further than is necessary for the purpose of giving effect to the security (h), as in the case of a lunatic tenant in tail (i); and also except in the case of trustees of settlements, in whom long terms of years are vested in trust to raise money for portions and other purposes.

SECTION II.

Form of mortgage in fee.

FORM OF MORTGAGE OF FREEHOLDS ACCORDING TO MODERN

PRACTICE.

i.-General Scheme of Arrangement of a Mortgage Deed.-In modern practice, mortgages of freeholds are usually made either in fee or for such other freehold interest as the mortgagor has in the lands.

A legal mortgage of freehold land in fee simple may be regarded as furnishing the normal type of a mortgage security. It is therefore proposed in this place to consider in detail the form and contents of such a mortgage, and to point out later, as

(d) See per Lord Redesdale in Schoole
and Wife v. Sall, 1 Sch. & L. 176.
(e) 37 & 38 Vict. c. 78, s. 4.
(f) 44 & 45 Vict. c. 41.

(g) Wiseman v. Westland, 1 Y. & J.

117.

(h) See Fines and Recoveries Act (3 & 4 Will. IV. c. 74), s. 21.

(i) Re Pares, 2 Ch. D. 61, C. A.

occasion shall arise, such variations as are necessary or convenient in making mortgages of different kinds of property other than freeholds.

CHAPTER X.

of clauses in

The present practice with regard to the arrangements of clauses Arrangement in mortgage deeds is usually as follows:-After the names and mortgage descriptions of the parties and the recitals, if any, follows the deed. first witnessing part, containing a covenant for the payment of the principal debt and interest (j). This is succeeded by one or more further witnessing parts conveying the property by way of mortgage, subject to a proviso for redemption. Then follow any special clauses relating to the payment of the principal or interest. Next come special clauses relating to the subjectmatter of the mortgage, such as restrictions on the mortgagor's power of leasing, and covenants by him for the maintenance or insurance of the mortgaged property. These may be followed by clauses modifying or extending the statutory powers of sale (k) and other clauses giving special remedies to the mortgagee.

Till recently, covenants for title were generally inserted at the end of mortgages, but these are now usually dispensed with in reliance upon the statutory covenants implied by the mortgagor being expressed to convey as "beneficial owner" or as "trustee," as the case may be.

ii.—The Parties.-All persons who are intended to convey or Who should to take anything under the mortgage deed, or to enter into be parties. stipulations in the deed, must be made parties. These parties will usually be the mortgagor of the one part, and the mortgagee of the other part. But sometimes the concurrence of other parties will be necessary for purposes of suretyship, or of signifying consent to the mortgage, or acknowledging receipt of the mortgage moneys, or for other purposes.

are advisable.

iii.-The Recitals.-Recitals are frequently unnecessary in a When recitals mortgage deed, and may accordingly be dispensed with. They are, however, sometimes necessary or convenient for the purpose of explaining the nature and incidents of the subject-matter of the security, or other matter affecting the form and contents of the deed. A recital of the mortgagor's seisin in fee, free from incumbrances, may be of use so as to render the deed, on the

(j) See ante, p. 9.

(*) As to the powers of sale given

to mortgagees by statute, see post,
Vol. II. pp. 882 et seq.

CHAPTER X. expiration of twenty years from its execution, a satisfactory root of title (7). But if earlier deeds are recited as proving the mortgagor's title, it must be borne in mind that such recitals prove only so much of the earlier deeds as are actually stated in the recital (m).

Estoppel by recital.

Inaccurate recitals.

Recitals will bind only those who are parties to the deed and persons claiming under them, and will not affect the rights of third parties (n). And a fraudulent misstatement in the deed, though it will bind the mortgagor himself (o), may be held not to bind a party claiming through him who would be aggrieved by the fraud (p).

A party to a deed of conveyance is not estopped by recitals contained in other deeds through which the title to the property is derived (g).

Where a recital contains a misstatement which was owing to a mistake of both parties to the deed, no estoppel arises (»).

A recital will not be available by way of estoppel in any action or proceeding except such as are directly concerned with the deed containing the recital (s). Nor will estoppel be worked by a recital containing statements extraneous to the actual contract (t).

Though recitals are, as a general rule, regarded as binding on all parties to the deed, they may be construed as amounting to an admission by one party only, so as to estop him, but not the other party (u).

Inaccuracies in the recitals will not vitiate the deed (x), but they may influence the construction (y). A recital though inaccurate may bind the mortgagor and those subsequently

(1) Bolton v. London School Board, 7 Ch. D. 766. But see Re Johnson and Tustin, 30 Ch. D. 42.

(m) Gillett v. Abbott, 7 A. & E. 783. (n) Stroughill v. Buck, 14 Q. B. 781. See Beckett v. Bradley, 7 My. & Cr. 994; Whitton v. Peacock, 2 Bing. N. C. 411; Gaunt v. Wainman, 3 Bing. N. C. 69; Doe d. Marchant v. Errington, 6 Bing. N. C. 79; Pitt v. Williams, 5 A. & E. 885. See as to trustees for public purposes, Fairtitle d. Mytton v. Gilbert, 2 T. R. 169; Doe d. Levy v. Horne, 7 Jur. 38.

(0) Doe d. Roberts v. Roberts, 2 B. & Ald. 367.

(p) Doe d. Williams v. Lloyd, 5 Bing. N. C. 742.

(9) Doe d. Shelton v. Shelton, 3 A. & E. 265.

(r) Re Carter's Trusts, L. R. 3 Eq. 495; Brooke v. Haymes, L. R. 6 Eq. 25; Empson's Case, L. R. 9 Eq. 597; Exp. Morgan, Re Simpson, 2 Ch. D. 72. (s) Stroud v. Willis, Cro. El. 362; Carpenter v. Buller, 8 M. & W. 209; Hill v. Manchester, &c. Waterworks Co., 2 B. & Ad. 344; Carter v. Carter, 3 K. & J. 617.

(t) Kipp v. Wiggett, 10 C. B. 354; Gillett v. Abbott, 7 A. & E. 783. (u) Doe d. Rogers v. Brooks, 3 A. & E. 513.

(x) Moody v. Lewin, Cro. El. 127; S. C. sub nom. Lewen and Moody's Case, 3 Leon. 135; Withes v. Casson, Hob.

128.

(y) Mosley v. Motteux, 10 M. & W.

533.

claiming under him by way of estoppel. So, if a mortgage deed contains a positive statement of a matter of title, or of any other matter material to the transaction, such statement will bind the estate in the hands of the mortgagor or persons claiming through him (s). But, in order to have this effect, the statement must be positive and distinct (a). So a statement that the grantor is well entitled in fee, at law or in equity (b), or that the mortgagor is seised or otherwise well entitled (c), is not sufficient to bind the subsequently-acquired legal estate in the hands of the mortgagor or a puisne mortgagee, or a purchaser of the equity of redemption.

CHAPTER X.

of the deed.

Although clear words of conveyance cannot be controlled by How far rewords of recital, it has been held that the estate clause and citals control operative part general words are not to be regarded as clear words of conveyance which cannot be so controlled (d). It is conceived that the same rule must be deemed to apply to all matters imported as incident to a conveyance of land by virtue of the Conveyancing and Law of Property Act, 1881, ss. 6 and 63 (e).

recitals.

On the other hand, if there is any doubt about the construc- Equivocal tion of the governing words of a document, the recitals may be operative words may be looked at in order to determine what is the true construction (ƒ); explained by but in considering the effect of recitals in controlling the operative part of a deed, the rule appears to be that the whole deed must be regarded, and the intention of the parties must be gathered from it, and that the recitals or the words of the operative part will take effect according as the one or the other exhibits a more clear indication of the intention (g).

Where recitals specified as the subject-matter of the deed certain estates which were comprised in two recited instruments,

(z) Goodtitle v. Bailey, Cowp. 601; Taylor v. Needham, 2 Taunt. 278; Doe v. Stone, 3 C. B. 176; Carpenter v. Bullen, 8 M. & W. 212; Gwin v. Neath Canal Co., L. R. 3 Ex. 209. See further, as to estoppels by deed, notes to Duchess of Kingston's Case, in 2 Sm. L. C. 9th ed.; Elphinstone's Interpretation of Deeds, pp. 140 et seq.; Byth. & Jarm. Conv., vol. v. pp. 132 et seq. (4th ed.).

(a) Palmer v. Ekins, 2 Ld. Raym. 1550, 1553.

(b) Right d. Jeffreys v. Bucknell, 2 B. & Ad. 278; General Finance, &c. Co. v. Liberator Permanent Benefit Building Society, 10 Ch. D. 15; Onward Building Society v. Smithson, (1893) 1 Ch. 1,

C. A.

(c) Heath v. Crealock, L. R. 10 Ch. A. 22.

(d) Rooke v. Lord Kensington, 2 K. & J. 753; Francis v. Minton, L. R. 2 C. P. 543; Neame v. Moorsom, L. R. 3 Eq. 91, at p. 97; Howard v. Lord Shrewsbury, L. R. 17 Eq. 391. But see Young v. Wallingford, 52 L. J. Ch. 590.

(e) See post, pp. 118 et seq.

(f) Per Brett, L. J., in Leggott v. Barrett, 15 Ch. D. 306, at p. 311, C. A.

(g) See Barrett v. Wyatt, 30 Beav. 443. See also Bailey v. Lloyd, 5 Russ. 344; Re Michell's Trusts, 9 Ch. D. 9, C. A.