CHAPTER XI. proviso expressly charging the property should be inserted in the deed of covenants accompanying the surrender, so as to confer such powers on the mortgagee, or the deed should, according to the former practice, contain full powers of sale, &c., with the ancillary clauses (y).

Insurance of lives.

Second surrender by mortgagor.

Ejectment.

Foreclosure.

In mortgages of copyholds for lives, it is usual to insure the lives of the cestuis que vie for further security, and in such case the deed will contain covenants for keeping up the policies. But where money is raised by the Court upon such property, the persons entitled cannot be compelled to insure (≈).

iii.-Rights, &c. of unadmitted Mortgagee.-Until after the mortgagee has been admitted, the mortgagor may, in the meantime, make a second surrender, which will be good if the first surrender is not perfected by admittance (a). But although the first surrender is not inrolled, the second mortgagee, though without notice of the former, does not, by the inrolment of his surrender, acquire priority (b), unless by the custom of the manor there was a limited time for presenting surrenders made out of Court; and the same applies to an immediate purchaser (c).

A mortgagee who has not been admitted cannot maintain ejectment, unless, in the case of a tenant of the mortgagors, the relation of landlord and tenant has been created aliunde (d). But, inasmuch as a subsequent admittance will relate back to the date of the surrender, the mortgagee may, after admittance, recover in ejectment against, and also mesne profits from, a purchaser who has been admitted under a later surrender (e).

After condition broken, and before admittance, the mortgagee may bring his action to foreclose (ƒ), and, if no surrender has been made, he may compel the mortgagor to surrender at his own expense (g), unless the covenant to surrender otherwise provides (h).

283.

(b) Horlock v. Priestley, 2 Sim. 75. (c) Doe v. Gibbons, 7 Car. & P. 161. (d) Rayson v. Adcock, 9 Jur. N. S. 800, C. P.

(e) Holdfast v. Clapham, 1 T. R. 600; Rex v. Mildmay, 5 B. & Ad. 254; Benson v. Scott, 4 Mod. 251; Doe v. Gibbons, 7 Car. & P. 161.

(f) Sutton v. Stone, 2 Atk. 101.
(g) Pryce v. Bury, 2 Drew. 41.
(h) Hill v. Price, Dick. 344.

If a surrenderee to him and his heirs dies before admittance, CHAPTER XI. his heir may be admitted (7).

before wh

If the mortgagor dies before the admittance of the mortgagee Death of and a heriot is paid, and the mortgagee afterwards dies, and his heir claims to be admittel, Mr. Watkins, makes a query, mittance of whether, inasmuch as the admittance of the surrenderse or his heir always relates to the time of the surrender so as to avoid all intermediate rights and interests contrary to the surrender, such as the freebench of the surrenderor's widow, and the like 7, or even an intermediate purchase, a heriot will not on such admittance become due, as if the surrenderse Lad died seised; and, if so, whether the lord ought not to return the first berist Arguing from principle, it would seem that such would be the law; for, after the admittance of the heir of the surrenderee, it would be diffent to entend that fetime juris, the surrendere died selsed so as to avoid the widow's fresbeach, de, but not so as to give the lord a right to his heriot, and the law would scarcely permit the lord to hold both But the case has not beer demãed

After the conditional surrenderse has been admitted, he case of becomes tenent to the lord and the surrenderor may, tedore Gnolition broken release to him the beneft of the vondrion m and her condition broker, he may release to him the equity of redemption: and no fue win either case be necessary, for the mortgagee is already in possession, and on his admittancE a foe but beer dready paid

Where & surrender and admittance of a purchaser as bee Fraudu entered on the court role in such a manner as would be a fraud 11 a intended mortgage, who had advanced is favour of moder upon the security of the property, the Court will mo the consent of the lord being given, or is being a party to the suit, order the entry to be reformed i

Ey the Coprioit An 1884 & surrender wer of mort Kem d gage under a surrender entered on the court roli, il possession,

or in receipt of the rents and profite of land it to be deemed a clau entair tenant with the meaning of that Act, and emited to obtai join in obtaining and effecting enfranchisement. Loy money

CHAPTER XI.

Effect of enfranchisement.

Mortgage of equity of redemption.

paid by him for that purpose is to be added to the amount due to him as mortgagee; and the land is not to be redeemable without payment of such money with interest thereon.

By sect. 20 of the same Act (9), a mortgage of copyholds becomes, on enfranchisement, a mortgage of the freehold, but subject to any charges under the Act for consideration money, interest, and expenses of enfranchisement (»).

An equity of redemption in copyholds, being an equitable estate only, may be effectually mortgaged by deed, without surrender.

(9) Re-enacting in effect the corresponding provision of the repealed Copyhold Act, 1841 (4 & 5 Vict. c. 35),

B. 81.

(7) See as to enfranchisements, post, p. 385.

CHAPTER XII.

OF A MORTGAGE OF LEASEHOLDS.

mortgagee by assignment.

i.—Mortgage of Leaseholds by Assignment.-A mortgage of Liability of leaseholds may be by assignment of the whole unexpired residue of the term. It has long been settled, and it is now clear, both on principle and sound authority, that if a mortgagee accepts an assignment of all the remaining interest in the term, he will be liable to the payment of the rent, and performance of the covenants in the original lease, so long as he shall be the legal owner thereof, although he shall not take actual possession of the premises (a). The Court will not, on the one hand (b), assist the lessor in an action brought by him against the mortgagee for a discovery of the deed of assignment to him and for a specific performance of the covenants, but will leave the lessor to his remedy; so neither will it, on the other hand (c), after the lessor has obtained judgment against the mortgagee for the arrears of rent, give the mortgagee relief, although he has never been in possession.

mortgagee's

transfer of mortgage.

In case of mortgage by assignment, the liability of the mort- Cesser of gagee on the covenants ceases on transfer or sale and assign- liability on ment (d). It was formerly supposed that a depositary of a lease was Depositee liable for the rent and covenants in a suit by the lessor (e). But of lease not it is now clear that a depositary of a lease is not answerable covenants. for the rent and covenants of the lease, and the landlord cannot compel him to take, or the mortgagor to execute, an assignment,

(a) Westerdell v. Dale, 7 T. R. 312; Stone v. Evans, Woodf. L. & T. 12th ed. p. 244; Turner v. Richardson, 7 East, 340, n.; Mayor of Carlisle v. Blamire, 8 East, 487; Traherne v. Sadlier, 5 Bro. P. C. 179; Williams v. Bosanquet, 1 Br. & B. 238; 3 Moo. 500; Burton v. Barclay, 7 Bing. 745;

Haig v. Homan, 4 Bli. N. S. 38.

(b) Sparkes v. Smith, 2 Vern. 276.
(c) Pilkington v. Shaller, 2 Vern.

374.

(d) Onslow v. Currie, 2 Madd. 330.

(e) Clavering v. Westley, 3 P. Wms. 402; Lucas v. Comerford, 3 Bro. C. C. 166; Flight v. Bentley, 7 Sim. 149.

liable on

CHAPTER XII. even if the depositary has been in possession and paid rent (≈). In such a case, though not liable for the rent and covenants under the lease, he would apparently be liable in respect of his tenancy.

Forfeiture by mortgagor.

Form of mortgage by demise.

Effect of declaration of trust of reversion.

Where judgment by default has been taken against a mortgagor-lessee for forfeiture, the equitable depositee of the lease can set aside the judgment under Ord. XXVII. r. 15, and defend in the name of the lessee, indemnifying him (a).

ii. Mortgage of Leaseholds by Demise.-It has been generally recommended that a mortgage of leaseholds should be by way of underlease, in order to avoid rendering the mortgagee liable for the rents and covenants of the original lease. In framing such mortgages, the practice is to demise the property to the mortgagee at a peppercorn rent, reserving the last day, or the last few days of the original term, and to make the mortgagor covenant to pay the rent and perform the covenants in the original lease. It is also usual to insert in such mortgages a declaration by the mortgagor that he will stand possessed of the nominal reversion in trust for a purchaser on any sale by the mortgagees under his power, or else in trust for the mortgagee himself. The form of declaration more frequently adopted in practice has been that of a declaration of trust in favour of a purchaser; but it may be regarded as settled that a declaration of trust in favour of the mortgagee himself will not render him liable to the lessor for the rent and covenants of the lease (b); nor entitle the lessor to require him to take an assignment of the lease (c).

It has been held that a mere covenant for the assignment of the nominal reversion upon a sale, in such manner as the purchaser should require, would not render the mortgagor trustee for a purchaser, so as to enable the latter to obtain an order under the Trustee Acts (d) vesting in him the outstanding reversion (e). It is, however, conceived, upon the analogy of

(z) Moores v. Choat, 8 Sim. 508; Moore v. Greg, 2 De G. & Sm. 304; 2 Ph. 717; Walters v. The Northern Coal Mining Co., 5 De G. M. & G. 629; Cox v. Bishop, 8 De G. M. & G. 815. See Newry Rail. Co. v. Moss, 14 Beav. 64; Wright v. Pitt, L. R. 12 Eq. 408.

(a) Jacques v. Harrison, 12 Q. B. D. 165, C. A. See North London Land Co. v. Jacques, W. N. (1883) 187.