MORTGAGES. No. 24. MORTGAGE in fee, by APPOINTMENT and LEASE and THIS INDENTURE, made the day of in the year of our Lord, BETWEEN [mortgagor] of &c., of the one Parties. (109) This precedent exhibits a concise example of a mortgage in fee with power of sale. See the notes to No. 26, post-Under the term mortgage, as that term is popularly used, three clases of securities are comprised: 1. The old mortgage described by Littleton, (s. 332), viz. a conveyance conditioned to be void or voidable at law on payment; 2. A conveyance absolute at law from the beginning, but defeasible in equity by a direction to re-convey on payment, either with or without a power of sale; 3. A conveyance either to the lender or his nominee, upon trust to sell after default in payment. In each case the grantee is at law the owner, either absolute or qualified. In the first case, the estate on non-payment is said to be forfeited, i. e. it becomes absolute at law, and as there is no express trust, the lender would be the owner to all intents, were it not that by construction of equity, from the nature of the transaction, the conveyance is a mere pledge, so that the lender is bound in conscience to reconvey on satisfaction of the debt; and the benefit of this moral obligation is the original equity of redemption, and is strictly and properly so called. The second case differs from the first in form, rather than in substance, inasmuch as, though there is a direction to re-convey, it is confined in terms to payment at the appointed time; but equity does not consider time as of the essence of the contract, and therefore implies an engagement to re-convey after the day on satisfaction of the debt. In both cases the lender may foreclose; in both cases he is only quasi, and not strictly a trustee. The difference is rather in the legal form, than in the equitable nature or incidents of the security. In the third case, the lender (where he takes the conveyance to himself) is expressly a trustee for raising his debt by a mode defined and limited, i. e. by sale; he cannot foreclose; nor can he, it is conceived, (there being an express trust, 3 & 4 Will. 4, c. 27, s. 25), acquire the ownership by continuing in possession or receipt of the rents without acknowledgment (Id. s. 28). In short, he is not a mortgagee; nor is he, on the other hand, a dry trustee, (as his nominee, standing between the borrower and lender, would be), for he has a trust coupled with an interest, and is accountable as a mortgagee. The right of fore Of the different kinds of mort gage securities. RECITALS -of conveyance to mort gagor, to uses to prevent dower; for loan. part, and [mortgagee], of &c., of the other part. WHEREAS, by virtue of indentures of lease and release, dated respectively the and days of, in the year 18-, the indenture of release being made between &c., the fee-simple in possession of the hereditaments hereinafter described stands limited To such uses as the said [mortgagor] shall by any deed or deeds apppoint; And in default of such appointment, To the use of the said [mortgagor] and his assigns for his life, without impeachment of waste, with remainder to the use of the said [a trustee to prevent dower], his executors and administrators, during the life of the said [mortgagor], upon trust for the said [mortgagor] and his assigns, with remainder To the use of the said [mortgagor], his heirs and assigns for ever -of agreement AND WHEREAS the said [mortgagee] has, at the request of the said [mortgagor], agreed to lend to him the sum of £ on having the repayment thereof, with interest, secured in manner hereinafter expressed. Now THEREFORE THIS INDENTURE WITNESSETH, that, in consideration of the sum of £— of lawful British money, paid by the said [mortgagee] to the said [mortgagor] on the execution of these presents, the receipt whereof the said [mortgagor] hereby acknowledges, and therefrom hereby releases the said [mortgagee], his heirs, executors, administrators, and assigns, The said [mortgagor], in execution of the aforesaid power given to him by the said recited indentures, and of every other power enabling him in this behalf, Mortgagor ap- and by way of primary or principal assurance, Doth appoint points. that ALL the hereditaments hereinafter described, with their appurtenances, shall henceforth remain to the uses hereinafter expressed. AND THIS INDENTURE FURTHER WITNESSETH, that, for the consideration aforesaid, The said [mortgagor], by way of secondary or auxiliary assurance, Hath granted, bargained, sold, and released, and by these presents Doth grant, bargain, TESTATUM. FURTHER Mortgagor re- closing seems mainly to distinguish a mortgage, properly such, from other specific securities. But the right of foreclosing and the power of selling may, and in modern mortgages generally do, co-exist. Where the security assumes the shape of a mortgage, as in the first class, or of a quasi mortgage, as in the second class, the remedy by foreclosure is an equitable incident; but the remedy by sale must be expressly given: where the security assumes a different shape, as in the third class, the remedy by foreclosure is not incident, (see Kerrick v. Saffery, 7 Sim. 217), but must be expressly superadded. sion clause. sell, and release unto the said [mortgagee], (in his actual pos- Actual possessession now being, by virtue of a bargain and sale thereof made to him by the said [mortgagor], in consideration of 5s., by indenture dated the day next before the day of the date of these presents, for one year, computed from the day next before the day of the date of the said indenture of bargain and sale, and by force of the statute for transferring uses into possession), and to his heirs, ALL [parcels], Together with all the Parcels. rights, members, and appurtenances thereunto belonging; And All estate, &c. also all the estate, right, title, and interest of the said [mortgagor], in and to the said hereditaments and premises; And all deeds and writings relating to his title to the said hereditaments and premises, or any part thereof: TO HAVE AND TO HABENDUM. HOLD the said hereditaments and premises hereby released or intended so to be, with their appurtenances, unto the said [mortgagee] and his heirs, To such uses and in such manner as he, his executors, administrators, or assigns, at any time, or from time to time, during the lives of the said [mortgagor] and [mortgagee], or the life of the survivor of them, or within twenty-one years from the day of the decease (inclusively) of such survivor, shall by any deed or deeds appoint (110); And To mortgagee in default of, and until appointment, To the use of the said [mortgagee], his heirs and assigns, for ever, Nevertheless subject to, with, and under the provisions and declarations hereinafter contained, (that is to say), PROVIDED ALWAYS, that Proviso for redemption. if the said [mortgagor], his heirs, executors, administrators, or assigns, shall pay or cause to be paid unto the said [mortgagee], his executors, administrators, or assigns, the sum of of lawful British money, with interest for the same after the rate of £- per cent. per annum, on the day of next, without deduction, then, immediately after such payment, the said hereditaments and premises shall, at (110) See the notes to No. 26, post. Notwithstanding the difficulty there suggested in the way of the annexation of the power to the debt, it is highly probable that the serious practical inconveniences incident to the separation of the legal dominion over the land from the right to the money, (see No. 38, post), would induce the courts to treat the power in the text, coupled with the subsequent declaration for ascertaining the donee or donees, as sufficiently definite. Indeed, the objection seems to be little regarded in practice, for the power is now very commonly given to the "executors, administrators, and assigns." To such uses as mortgagee shall appoint. in fee. Annexation of the mortgagee's power of appointment to the debt. Power of sale. Power to pay off prior incumbrances. the request and costs of the said [mortgagor], his heirs, executors, administrators, or assigns, be re-assured, (free from all incumbrances to be created by the said [mortgagee], his heirs, executors, administrators, or assigns, in the mean time), to such uses as shall be subsisting or capable of effect by virtue of the hereinbefore recited indentures (111); PROVIDED ALSO, that if default (112) shall be made in payment of the said sum of £, or the interest thereof, or any part thereof, at the time and in manner aforesaid, and the said [mortgagee], his executors, administrators, or assigns, shall at any time afterwards give to the said [mortgagor], his heirs, executors, administrators, or assigns, or any of them, or leave at his or their, or any of their, usual or last known place or places of abode in England, notice in writing of an intention to exercise this power of sale, then, unless the said sum of £, with all interest due for the same, and all costs occasioned by the non-payment thereof, shall be paid at the end of six calendar months from the giving or leaving of such notice, it shall be lawful for the said [mortgagee], his executors, administrators (113), or assigns, at any time or times after the expiration of the said six calendar months, without the necessity of the concurrence or consent of the said [mortgagor], his heirs or assigns, to sell the said hereditaments and premises, together or in parcels, by public auction or private contract, and subject or not subject to any special or other conditions or stipulations relative to the title or the evidence of title or otherwise, as shall appear expedient, and with full power to purchase in the said hereditaments and premises, or any part or parts thereof, at any auction, and also to rescind or vary the terms of any contract for sale, and to receive the money to arise from the sale or sales thereof, and out of the same money to retain and satisfy the said sum of £, with all interest due for the same, and all costs and expenses occasioned by the non-payment thereof; And the surplus (if any) of the money so to arise as aforesaid shall be paid (114) to the said [mortgagor], his heirs, executors, administrators, or assigns (115). (111) See notes to No. 26, post. (113) Ib. (114) Ib. (115) If the mortgage is made subject to prior incumbrances, add a provision to this effect:-"Provided also, and it is hereby further declared, that clause. And the said [mortgagor], hereby directs that every receipt Exoneration which shall be given by the said [mortgagee], his executors, administrators, or assigns, or his or their agent or agents, to any purchaser or purchasers under the power of sale hereinbefore contained, for his, her, or their purchase-money, shall exonerate such purchaser or purchasers from all liability in respect of the application thereof, nor shall such purchaser or purchasers be obliged or concerned to inquire or take notice whether any sale or sales is or are necessary or proper for any of the purposes hereinbefore expressed, nor whether any such default has been made or notice given as aforesaid, nor be affected by any irregularity in the exercise of the said power of sale;. And it is hereby declared, that the powers of ap- Declaration pointment and sale, and the other powers hereinbefore given shall follow the to the said [mortgagee], his executors, administrators, and debt. assigns, shall belong and be confined to the person or persons to whom the money due on the mortgage hereby made ought for the time being to be tendered in order to redeem such mortgage, so that such powers may be annexed to the mortgage debt and not to the mortgaged estate; And it is hereby further declared, that the legal owner or owners for the time being of the said hereditaments and premises shall be deemed a dry trustee or dry trustees, without duty or discretion, for it shall be lawful for the said [mortgagee], his executors, administrators, or assigns, in the execution of the power of sale herein before contained, to sell the said several hereditaments comprised in the said recited indentures of the day of, and the - day of respectively, either subject to or discharged from the respective mortgages thereby made, or either of them, and in case the same hereditaments respectively, or any part thereof, shall be sold discharged from the said mortgages respectively, then to apply a competent part or parts of the money to arise from the sale or sales of the same hereditaments, or of any other hereditaments to be sold under the power hereinbefore contained, in or towards payment and satisfaction of such mortgage or mortgages, and that the said [mortgagee], his executors, administrators, and assigns, shall have full discretionary power and authority to take such measures and make such arrangements in relation to the said mortgages, either by paying off the same and taking transfers or assignments thereof, or otherwise, as shall be deemed necessary or convenient for strengthening or improving the security hereby made, or facilitating the execution of the said power of sale, and to pay and defray all the costs, charges, and expenses incident to such measures or arrangements, out of the monies which shall come to his or their hands by virtue of these presents." that the powers |