mortgagors, or to join as covenantors, the implied covenant on their part shall be deemed to be a joint and several covenant by them; and where there are more mortgagees or more transferees than one, the implied covenant with them shall be deemed to be a covenant with them jointly, unless the amount secured is expressed to be secured to them in shares or distinct sums, in which latter case the implied covenant with them shall be deemed to be a covenant with each severally in respect of the share or distinct sum secured to him.

xvi.-Assignment of outstanding Terms.-It was a common practice to keep on foot long terms of years, after the original purposes of their creation had been satisfied, and on every mortgage of the inheritance to assign them to a trustee for the mortgagee's protection (g). The assignment of satisfied terms, however, is now rendered impracticable by 8 & 9 Vict. c. 112, which has consequently deprived the mortgagee of a valuable means of protection against incumbrances (). The mortgagee, however, should not dispense with the assignment of a term on the occasion of a mortgage, unless he has the surest ground for concluding that the term is satisfied within the meaning of the Act prior to his mortgage (). The Act only extends to freeholds, and such customary lands as will pass by deed, or deed and admittance, and not by surrender (k); it consequently does not affect a term created by sub-demise.

xvii.-Collateral Securities.-Collateral securities may properly be prepared by separate deeds, in order to avoid mixing up in one deed the title to separate properties. The title to the freehold is kept distinct from the dealings connected with the subject-matter of the collateral security. Discrimination, however, is required to determine when separate deeds should be taken (7).

The inclusion in the same mortgage of several estates, the ownership of which may subsequently be severed, is often productive of inconvenience.

See

(g) Shaw v. Johnson, 1 Dr. & S. 412; Plant v. Taylor, 7 H. & N. 211; Owen v. Owen, 3 H. & C. 88. Sug. R. P. St. 282; note, ed. 2. (A) Sug. R. P. Stat. 277, ed. 2; Shaw v. Johnson, sup.

(1) Doe v. Price, 16 M. & W. 603; Doe v. Jones, 13 Jur. 824.

(k) See s. 3.

(1) Dav. Conv. (4th ed.), Vol. II. pt. ii. 532.

CHAPTER X.

Conditional

surrender.

Separate deed

CHAPTER XI.

OF A MORTGAGE OF COPYHOLDS.

i.-Mortgage by Conditional Surrender.-Mortgages of copyholds, on account of the peculiar nature of the tenure, retain in general their primitive form. They usually consist of a conditional surrender by the mortgagor to the mortgagee and his heirs. The surrender may be made in the manor court, but is now frequently made out of court (a) to the steward or his deputy, unless the custom of the manor requires it to be made before the tenants. By the condition, the surrender is made void on payment by the mortgagor, &c., of principal and interest to the mortgagee, &c., on a given day; the condition is entered on the rolls, and immediately follows the surrender.

The condition may, however, be contained in a separate deed of defeasance. of defeasance, of even date with the surrender; but, as remarked by Mr. Watkins (b), this mode should never be resorted to when it can be avoided; for the defeasance may be lost, and then, as the surrender is absolute on the rolls, the proof of the condition may be difficult; and besides, the title to the lands should always appear on the records of the manor; and, therefore, even if a separate deed of defeasance be executed, it should be always entered on the rolls.

Another important reason against having an absolute surrender with a separate deed of defeasance formerly existed, viz., that if the mortgagee died without an heir, the lord of the manor might have entered for the escheat, inasmuch as he had no notice of the condition on his court rolls (c). But if the lord had

(a) If the surrender was made out of court, it was sometimes permitted to be vacated for want of a proper presentment, and a new surrender was taken. See Fawcet v. Lowther, 2 Ves. sen. 304. But now presentment by the

homage is not essential to the validity of an admission. See 4 & 5 Vict. c. 35, 8. 90.

(b) 1 Watk. Cop. 116.

(c) Att.-Gen. v. Duke of Leeds, 2 My. & K. 343.

notice of the condition for redemption, or of any trusts, although CHAPTER XI. only referred to as subsisting in a separate deed, he was bound; and if the trusts were by way of mortgage security, the mortgagor was entitled to re-admittance on payment of the debt (d).

forfeiture.

The legal rights of the lord claiming by way of escheat, in Escheat and default of heirs or forfeiture, are, however, now placed under the control of the Chancery Division, for the benefit of the parties beneficially entitled (e); so that there is little or no risk of either mortgagor or mortgagee being prejudiced by the escheat or forfeiture of the other's tenancy.

surrender.

The money ought not to be advanced till the surrender is Necessity of actually made, for a second mortgagee without notice may take a surrender and be admitted, and thus, having the legal estate, gain priority (ƒ). On performance of the condition by payment of the money on the day appointed, the surrender is at an end, and the land reverts to the surrenderor, as of his former estate, without any re-admission or fine (g); but if the day of payment is past, the surrenderor, having only an equity of redemption, must apparently, in strictness, pay a fine and be re-admitted (). Whether the money is paid at the day or not, if the surrenderec has not been admitted, it is considered sufficient in practice to enter satisfaction on the rolls on payment of the mortgage debt, without requiring the mortgagor to be re-admitted (i).

tenant till

As well in the case of a conditional as of an absolute surrender, Mortgagor the surrenderor remains tenant to the lord until the admission of admission of the surrenderee (k), and as well for the purposes of forfeiture and mortgagee. escheat, as for other purposes (); so much so, that prior to 55 Geo. III. c. 192, the mortgagor could not, after the conditional surrender and before the admission of the surrenderee, devise the copyholds without a previous surrender to the use of his will (m).

It is not usual for a mortgagee to be admitted, for if he is Mortgagee admitted and the condition is broken by the non-payment of the admitted." not usually

(d) Weaver v. Maule, 2 R. & My. 97. (e) See 56 & 57 Vict. c. 53, s. 26; and 4 & 5 Will. IV. c. 23, and 13 & 14 Vict. c. 60, ss. 15, 46, both of which enactments are now repealed.

(f) Oxwick v. Plumer, Bac. Abr. Mortgage, E (7th ed.), Vol. v. p. 664. (g) Simonds v. Lawnd, Cro. Eliz. 239.

CHAPTER XI. money, his estate is absolute, and he becomes liable to the payment of rents and heriots and to the performance of the services, which is frequently undesirable; and when the mortgage is paid off, a re-admission and fresh fees and fine will be necessary, and the mortgagor will thereupon gain a new estate, and the descent be altered; so that if the lands had originally descended to him ex parte maternâ, they will afterwards descend as if he had taken by purchase (n).

Whether lord can compel

mortgagee.

Unless there is a special custom in the manor, by which the admittance of lord may compel a surrenderee to come in and be admitted, he cannot, it seems, compel the mortgagee to be admitted, even after condition broken (0); but if there is such a custom in the manor, it seems he may compel him, and the Court will not give relief (p).

Conditional surrender to uses as

mortgagee appoints.

Deed of covenants to accompany surrender.

The practice of framing conditional surrenders to such uses as the mortgagee should appoint in order to save the expense of a double admittance cannot successfully be resorted to; as the lord is not bound to enrol such surrender, since it tends to interfere with the fruits of tenure (q). But if the lord accept the surrender, he cannot afterwards refuse to act on it (»).

ii.-Deed of Covenants for or on Surrender.-In effecting a mortgage of copyholds it is necessary that there should be a deed, in addition to the surrender, for the purpose of containing covenants by the mortgagor for payment of principal and interest and for title, and other covenants and provisions which may be necessary for carrying out the terms of the contract, and for the purpose of conferring on the mortgagor a power of sale on default, which cannot be contained in, or implied by, the surrender itself.

This deed may be executed either previously to, contemporaneously with, or after the surrender. According to the more usual and better practice, the deed is executed previously to the surrender, and is in the form of a covenant to surrender the lands, containing also the ancillary covenants and provisions. Even when the deed of covenants precedes the surrender, the

(n) Benson v. Scott, 4 Mod. 251; Doe v. Morgan, 7 T. R. 103.

(0) Basspool v. Long, Cro. Eliz. 879; King v. Dilliston, 1 Salk. 386.

(p) Tredway v. Fotherley, 2 Vern. 367. See Scriv. Cop. (6th ed.) 118,

119.

(q) Flack v. Downing Coll., 13 C. B. 945. (r) Eddlestone v. Collins, 3 De G. M. & G. 1.

deed and surrender are considered to be parts of one and the same transaction (s). So, where a surrender was made referring to a previous deed, which stated on the face of it that the surrender was made as a security for money, it was held that the deed and surrender must be taken together as forming a mortgage, and that upon the death of the surrenderee the lord must admit his heirs on payment of the customary fine (t). A receipt clause should be inserted in the body of the deed of covenants, or indorsed thereon.

CHAPTER XI.

expenses.

It is not usual, in mortgages of copyholds, to provide by Payment of special covenants for the payment by the mortgagor of all fines, fines and costs, and expenses attendant on admittance, and other incidents of copyhold property; the matter is left to the general rule of law, and undoubtedly the mortgagor would not be permitted to redeem until after repayment to the mortgagee with interest of any such sum as the latter might have been compelled to expend. The case differs considerably from that of leaseholds, where renewal is optional; but it is sometimes thought advisable to arm the mortgagee with a covenant for payment of the sums he might be compelled, or might find it desirable, to expend by reason of the copyhold tenure. If the copyholds be held for lives, the mortgage (u) should contain the usual provisions for renewal and payment of the fines.

,, for title.

A covenant to surrender copyholds by way of mortgage is Covenants a conveyance," and an equitable charge is a "mortgage within the meaning of the Conveyancing and Law of Property Act, 1881 (x); and it is clear that a covenant to surrender copyholds creates a valid equitable charge thereon. If, therefore, a mortgagor covenants "as beneficial owner" to surrender, it seems clear that the mortgagee will thereby obtain the benefit of the implied statutory covenants for right to convey, quiet enjoyment, free from incumbrances, and further assurance, and also of the implied statutory powers of sale and other powers of a mortgagee under the Act.

The powers of sale, &c., given by sects. 19-24 of the Act Power apply only when the mortgage is by deed, and are, therefore, of sale. not implied by virtue of a conditional surrender not made in pursuance of an antecedent deed of covenant. In such a case a

20.

(8) Riddell v. Riddell, 7 Sim. 529.

(t) Weaver v. Kinglake, 9 L. J. Ch.

(u) Dav. Conv. (4th ed.), Vol. II.

pt. ii. p. 588.

(x) 44 & 45 Vict. c. 41, s. 2 (5).