No. XVIII.

MORTGAGE OF A MORTGAGE IN FEE OF FREEHOLD PREMISES,
AND OF A MORTGAGE DEBT OF £3,000 TO SECURE £1,000
AND INTEREST. (a)

Parties.

Assurance must

1. THIS INDENTURE, made the day of A.D. 18 BETWEEN (A., prior mortgagee) of, &c., of the one part, and (B., present mortgagee) of, &c., of the other part. (b) [RECITE mortgage deed as in last precedent, clause 2 to the end, and then add the clause following.]

(a) The present deed, operating as a mortgage, and not as a sale, must of be stamped as a course be stamped as a mortgage security.

mortgage security.

Practical remarks.

(b) A mortgagee who requires money upon an emergency, is sometimes compelled to raise it by a mortgage of his own security. This usually occurs where he is precluded from calling in the mortgage until some certain fixed period.

2. AND the now reciting indenture also contains a further No. XVIII. proviso that, upon punctual payment of the interest thereby re- Mortgage of a served, at the time and in manner therein appointed, the said (4.), Mortgage in Fee of Freehold his executors, administrators or assigns, should receive interest Premises, and of a Mortgage at the reduced rate of 41. for every 100l. by the year, and would Debt of 3,000l. not call in or require payment of the said sum of 3,000l. thereby secured, or attempt to foreclose the equity of redemption of the said premises for the term of seven years, to be computed from the day of the date thereof.

and Interest.

is still due,

with an arrear

3. AND WHEREAS the said principal sum of 3,000l. still remains That principal due and owing from the said (mortgagor) to the said (A.), upon the said herein before recited mortgage security, together with a small arrear of interest.

of interest, still owing.

for loan.

4. AND WHEREAS the said (A.) having immediate occasion for Of agreement the sum of 1,000l., has applied to and requested the said (B.) to lend and advance him the same on the security of the said mortgaged premises, which the said (B.) hath consented and agreed to do.

5. NOW THIS INdenture witneSSETH, that in pursuance of Testatum, by which prior the said recited agreement, and in consideration of 1,000l. sterling,

At other times it may happen that the mortgaged premises may be mortgaged
up to or beyond their full value, so that it may be difficult to procure a transfer,
or to obtain the amount of principal and interest by an immediate sale or fore-
closure. It may also happen that the security, being an advantageous one to the
mortgagee, he may be unwilling to call in the whole of his mortgage money
where he requires
lesser sum for his present occasions; in either of which cases
he may resort to his own mortgage security for the purpose of raising the sum
he may require, and which, provided the original mortgage is valid, and the title
good, will generally be found a secure and safe investment for the party who
advances the money.

Persons who advance money upon a security of this nature have indeed an Advantages and advantage over a mortgagee of an equity of redemption, because they have the disadvantages title deeds delivered over to them, which a second mortgagee has no right to, nor attending an even to compel the prior mortgagee to produce. The disadvantages are, that assurance by a mortgagee of a mortgage takes subject to such equity of redemption as is way of mortsubsisting upon the original mortgage and to all the stipulations in favour of gage upon a the original mortgagor as are conferred upon him by the mortgage deed. In mortgage. addition to this, the mortgagee of the mortgage is liable to account to his immediate mortgagor for any act of negligence on his part in availing himself of any of the remedies to recover the mortgage debt; but he may always protect himself against the latter by a clause of indemnity, as in the above precedent: (see clause 11; see also 2 Hughes Pract. Mort. 9.)

to secure 1,0007.

No. XVIII. lent, advanced and paid by the said (B.) to the said (4.) on the Mortgage of a execution hereof, the receipt of which the said (4.) hereby Mortgage in Fee acknowledges, and therefrom doth acquit, release, exonerate and for of Freehold Premises, and ever discharge the said (B.), his heirs, executors, administrators of a Mortgage Debt of 3,000l., and assigns; HE the said (4.) DOTH by these presents assign and and Interest. transfer unto the said (B.), ALL THAT the said principal sum of 3,000l., and all and singular other the sum and sums of money so as aforesaid due and owing upon the said hereinbefore recited mortgage security, AND all interest now due, and henceforth to accrue due in respect of the same; AND all the estate, right, title and interest, both legal and equitable, of him the said (A.) therein.

mortgagee

assigns mortgage debt.

Habendum.

Power of attorney.

6. TO HAVE, HOLD, RECEIVE AND TAKE the said principal sum of 3,000l. and interest, and all and singular other the said hereby assigned premises, unto the said (B.), his executors, administrators and assigns, to and for his and their own use and benefit, in as ample and beneficial a manner as the said (A.) his executors, administrators or assigns, now holds, or could or might hold and enjoy the same if these presents had never been made and executed.

7. AND for better enabling the said (B.), his executors, administrators or assigns, to recover and receive the said sum of 3,000l. and interest now due thereon, and also all such future interest as shall from henceforth accrue due on the said sum of 3,0001, (c) HE the said (A.), DOTH by these presents constitute and appoint the said (B.), his executors or administrators, the true and lawful attorney and attorneys irrevocable of him the said (A.), his executors or administrators, and in his or their name or names, but for the sole benefit of the said (B.), his executors, administrators or assigns, to ask, demand, sue for, recover and receive, of and from the said (mortgagor), his heirs, executors, administrators or

Practical observations.

(c) A mortgagee cannot, by assigning any arrears of interest, render the mortgagor liable to future interest thereon; the former being unable to impose any greater liability than the latter would otherwise be subject to; and it has long since been established, that interest cannot be made payable upon interest, notwithstanding the mortgagor and mortgagee enter into an express agreement that it shall do so: (Thornhill v. Evans, 2 Atk. 330.)

of Freehold

of a Mortgage Debt of 3,000l.,

to secure 1,000%.

and Interest.

assigns, or other the person or persons to whom it shall or may No. XVIII. belong to pay the same, the said principal sum of 3,000l., and all Mortgage of a interest now or henceforth to grow due in respect thereof; AND in Mortgage in Fee case of nonpayment of the same or any part thereof, to use and Premises, and employ all such lawful and equitable ways and means for enforcing payment, as may be deemed expedient in that behalf; and upon the payment or receipt thereof, to give good and sufficient releases and discharges for the same; AND ALSO with full power to appoint a substitute or substitutes for all, any, or either of the purposes aforesaid, and such appointment at pleasure to revoke, HE the said (A.), hereby ratifying and confirming, and promising and agreeing to ratify and confirm, all and whatsoever the said (B.), his executors or administrators, or his or their substitute or substitutes, shall lawfully do or cause to be done in the premises by virtue of these presents.

Further tes

tatum, by which

conveys mortgaged premises.

8. AND THIS INDENTURE FURTHER WITNESSETH, that in consideration of the premises, and of the sum of 5s. paid by the said prior mortgagee (B.) to the said (A.) on the execution hereof, the receipt of which gaped premise is hereby acknowledged, HE the said (A.) DoтH by these presents grant, release and confirm unto the said (B.), and his heirs, ALL, &c. [HERE DESCRIBE parcels; INSERT general words; allestate clause, and all-deeds clause; ut ante, No. I., clause 5, p. 33.]

subject to

9. TO HAVE AND TO HOLD the said (short general description), Habendum, and all and singular other the premises hereinbefore described, and subsisting equity of hereby granted and released, with their appurtenances, unto the redemption. said (B.) and his heirs, To THE USE of him the said (B.), his heirs and assigns for ever; subject nevertheless to such equity of redemption as is now subsisting in the said hereditaments and premises, under or by virtue of the said herein before recited indenture of mortgage; AND subject also to the proviso for redemption hereinafter contained.

10. PROVIDED ALWAYS, AND IT IS HEREBY DECLARED AND Proviso for redemption. AGREED, that if the said (A.), his heirs, executors, administrators or assigns, shall on the day of next well and truly pay or cause to be paid unto the said (B.), his executors, administrators or assigns, the sum of 1,000l. sterling, together

of a Mortgage

to secure 1,000%.

No. XVIII. with interest for the same at the rate of 5l., for every 1001. by the Mortgage of a year, without deduction, then the said (B.), his heirs, executors Mortgage in Fee of Freehold administrators or assigns, will at the request and costs of the said Premises, and (A.), his heirs, executors, administrators or assigns, re-assign the Debt of 3,000l., said principal moneys and interest, and reconvey the said hereand Interest. ditaments and premises, unto and to the use of the said (A.), his heirs, executors, administrators and assigns, according to the respective natures and qualities of the said premises, free from all incumbrances created or occasioned therein in the meantime by the said (B.), his heirs, executors, administrators or assigns. [INSERT covenant from mortgagor for payment of principal and interest; ut ante, No. I., clause 10 and 11, pp. 37, 38.]

Covenant from

prior mortgagee, that he has good right to

11. AND ALSO that he the said (A.) now hath in himself good right to assign the said mortgage debt or sum of 3,000l. and interest hereby assigned, and to grant and release the said hereditaments and premises hereby granted and released, with gaged premises. their appurtenances, unto and to the use of the said (B.),

assign mortgage debt, and to

convey mort

For quiet enjoyment, and freedom from

his heirs, executors, administrators and assigns, according to the respective natures and qualities of the said premises, in manner aforesaid, according to the true intent and meaning of these presents.

12. AND FURTHER that the same premises so granted, released and assigned as aforesaid shall or may from time to time and at all incumbrances. times hereafter be held and enjoyed according to the limitations and provisions hereinbefore contained, without let, suit, eviction, ejection, interruption, molestation, denial or disturbance, of or by any person or persons whomsoever; AND that free from all incumbrances whatsoever.

For further

assurance.

13. AND MOREOVER that the said (4.), and all persons whom soever rightfully claiming any estate or interest in the said sum of 3,000l. and interest, or in the said hereditaments and premises hereby granted and released, shall and will from time to time and at all times during the continuance of this mortgage security, at the request of the said (B.), his executors, administrators or assigns, but at the costs of the said (A.), his heirs, executors, administrators or assigns, make, do, acknowledge, enter into,