PRECEDENT XXV. Parties. Recitals. Original lease. Importance of lease of se ASSIGNMENT OF LEASEHOLDS WITH THE CONCUR- THIS INDENTURE, made &c., BETWEEN (mortgagee) (1) [It is of great importance to a purchaser that a lease comprising several houses or properties, capable of being sold, and Mortgage by assignment. way of mortgage (2), bearing date on or about tinct to each. veral pro- enjoyed separately, should reserve the rents, and have the cove perties nants applicable only to each house or property, so that each having rent and cove- part bears its own rent, and is subject to its own covenants, nants dis- without being liable for the rent and covenants of the other parts. Unless this be carefully attended to, the non-payment of rent, or non-repair, or the dropping of an insurance, as to a part would occasion a forfeiture of the whole property, though the unoffending portion were in the hands of other parties who had kept all the covenants. That a property is subject to the defaults of another property, is a valid and incurable objection to a title when not strictly guarded against by a condition, (Fildes v. Hooker, 3 Madd. 193,) and even when it is so guarded, the value of the property is seriously lessened.] Mortgage of leaseholds should be by underlease. (2) [It is the more prudent course on a mortgage of leaseholds to effect it by an underlease, by which means the mortgagee will escape liability to the lessor for the rent and covenants during the continuance of his security. On an assignment, he would, like any other assignee, be bound for payment of rent and performance of covenants during his estate, though he has assigned before action brought. (Horley v. King, 2 C. M. & R. 18.) It was formerly doubtful whether, when he had got rid of his character of assignee, he could be sued by the lessor even for breaches whilst assignee.] Contract. rate, at the times and in manner therein mentioned: AND WHEREAS the said (vendor) has contracted with the said (purchaser) for the assignment to him of such part of the premises comprised in the said indenture of lease as is hereinafter described, for the consideration hereinafter stated; and the said (mortgagee) at the request of the said (vendor) has agreed Testatum. to join in such assignment: Now THIS INDENTURE WITNESSETH, that in consideration of the sum of £ of sterling money to the said (vendor), with the consent of the said (mortgagee), paid by the said (purchaser), and also of the transfer by the said (purchaser), with the consent of the said (mortgagee), of the sum of £ £3. 5s. per Cent. Annuities, from the name of the said (purchaser), in the books of the Governor and Company of the Bank of England, into the name of the said (vendor), the receipt of which said sum, and the transfer and acceptance of the said stock by the said (vendor), the said (vendor and mortgagee) respectively acknowledge (3), and Ad valo(3) [Before the recent Stamp Act of 1850, (13 & 14 Vict. rem duty did not for- c. 97,) the transfer of stock as the consideration, wholly or in merly at part, for the conveyance of property, had the advantage of tach on stock con- saving the heavy ad valorem duty attaching on a money conside siderations. ration of that amount, the transaction being in fact an exchange, and the deed requiring merely an exchange or common deed stamp, 35s. The words of the Stamp Act only attracted an ad valorem duty where the consideration was money, and stock certainly was not money, and it did not pass under that description even in a will (15 Ves. 327), and à fortiori would not be construed as money in a deed, or to bring the transaction within a statute, imposing burdens on the subject. Added to this, whenever a stamp was intended to be in respect of money's worth, the legislature took care so to express it. (See Schedule, part. that the same are in full satisfaction of all monies secured to the said (mortgagee) as aforesaid, so far as such monies are an incumbrance upon the premises hereby assigned, but not further, or otherwise, the said (mortgagee) doth hereby also acknowledge, and therefrom doth hereby discharge the said (purchaser), and also the said (vendor), his heirs and Operative assigns: The said (mortgagee), by the direction of the said (vendor), DOTH bargain, sell, assign, transfer and set over; and the said (vendor) DOTH assign, release, ratify and confirm unto the said (purchaser) and his assigns, ALL (parcels, appurtenances): To HAVE AND TO HOLD the said lastly described premises unto the said (purchaser) and his assigns, henceforth, for all the residue now to come, and unexpired of the term of 99 years, by the said indenture of lease granted, "subject to the payment of the said yearly rent of £2 for each of the said six several messuages, and to the observance and performance of the covenants, provisoes and agreements in the said indenture of lease contained on the tenants or lessees' part to be henceforth performed and kept, so far as relates to the premises hereby assigned:" (4) Habendum. Mortgage.") The validity of a common stamp was in effect decided by Cumberland v. Kelley, (3 B. & Ad. 607,) which was a case of an annuity granted in consideration of stock, which was held not to require enrolment under 17 Geo. 3, c. 26, which extended only to annuities granted for pecuniary consideration.] [By the recent Stamp Act (Schedule “ Conveyance”), where the consideration shall consist either wholly or in part of any stock or security, the stamp duty is to be calculated according to the average selling price thereof on the day, or on any of ten days preceding the day of the date of the deed.] The assignee "" Subject (4) [This passage seems of little, if any, use. to rent and must necessarily hold, subject to the rent and covenants which covenants" for title. That the lease is subsisting. For good right to assign. Covenant AND the said (vendor) doth hereby for himself and his heirs covenant with the said (purchaser) and his assigns in manner following, that is to say, That for and notwithstanding anything by them the said (vendor and mortgagee), or either of them, made, done or suffered to the contrary, the said indenture of lease is a good and effectual lease in the law of such of the said premises therein comprised, as are hereby assigned; and that the term of years thereby granted is not forfeited, surrendered or become void or voidable: AND also that they the said (vendor and mortgagee) now have in themselves good right and lawful and absolute authority to assign and assure the premises hereby assigned, with their appurtenances, unto the said (purchaser) and his assigns in manner aforesaid, and according For quiet to the true intent and meaning of these presents; and enjoyment. that it shall be lawful for the said (purchaser) and his assigns, peaceably and quietly to enter into and enjoy the premises hereby assigned, with their appurtenances, and receive the rents, issues and profits thereof, for his and their own use and benefit, for all the residue of the term of years by the said indenture of lease granted, without interruption by does not covenant. run with the land. It is clear that no covenant for payment of create any the rent or performance of the covenant is created by the words "subject," &c., for occurring as they do in the habendum, they have no other effect than limiting the estate taken. (Wolveridge v. Steward, 3 M. & Sc. 570.) To raise a covenant, the language should be " subject to the payment by the assignee of the rent, and to the observance and performance of the covenants," &c.; or, He, the said assignee paying the said rent, and observing and performing," &c.] " . |