Proviso that mortgagee's right of foreclosure shall not be affected. Covenants by mortgagor to pay mortgage terest; -for right to convey; the person or persons last aforesaid, for all the purposes of this security. PROVIDED ALSO, that the said [mortgagee], his executors, administrators, and assigns, shall, notwithstanding the power of sale herein before contained and concurrently therewith, have all the rights and remedies, by foreclosure or otherwise, of a mortgagee in ordinary cases (116). AND the said [mortgagor], for himself, his heirs, executors, and adminismoney and in- trators, hereby covenants with the said [mortgagee], his heirs, executors, administrators, and assigns, that the said [mortgagor], his heirs, executors, administrators, or assigns, will pay or cause to be paid unto the said [mortgagee], his executors, administrators, or assigns, the said sum of £, with interest for the same after the rate aforesaid, at the time and in manner herein before appointed for payment thereof; And also that the said [mortgagor] has in himself good right by these presents to assure the said hereditaments and premises, with their -for quiet en appurtenances, to the uses and in manner aforesaid; And also joyment; that the said hereditaments and premises shall or may be peaceably and quietly held and enjoyed, and the rents, issues, and profits thereof taken accordingly, without any eviction, interruption, or denial whatsoever, Free and clear, or by the said [mortgagor], his heirs, executors, or administrators, kept indemnified from or against all former and other estates, rights, -and for fur- titles, charges, and incumbrances; And also that the said [mortgagor], and every person rightfully claiming any estate, right, or interest in or to the said hereditaments and premises, or any part thereof, will or shall at any time and from time to time (117), at the request of the said [mortgagee], his heirs, executors, administrators, or assigns, but at the costs of the said [mortgagor], his heirs or assigns, until the said hereditaments and premises shall be sold and conveyed under the said power of sale, or the equity of redemption thereof shall be absolutely foreclosed, and afterwards at the costs of the said [mortgagee], his heirs or assigns, do and execute every such act, deed, conveyance, or assurance for more effectually as -for freedom from incumbrances; ther assurance. Covenant in mortgage for further assur ance. (116) A clause to this effect is often inserted, though it may appear to be dictated by superabundant caution. (117) Not "after default," &c., as the forms often run. The mortgagee should have a right to call for the immediate removal of any defect. Vide ante, n. (70). suring the said hereditaments and premises, with their appurtenances, to the uses aforesaid, or otherwise according to the direction of the said [mortgagee], his heirs, executors, administrators, and assigns, as by the said [mortgagee], his heirs, executors, administrators, or assigns, or his or their counsel, shall be required or advised. PROVIDED LASTLY, that, until Proviso that default in payment of the said sum of £, and the interest mortgagor shall enjoy till dethereof, at the time and in manner aforesaid, it shall be lawful fault. for the said [mortgagor], his heirs or assigns, to hold and enjoy and take the rents and profits of the said hereditaments and premises, without interruption or denial from or by the said [mortgagee], his heirs or assigns, or any person or persons rightfully claiming through or under him, but no purchaser or purchasers under the said power of sale shall be affected by this provision. IN WITNESS &c. No. 25. MORTGAGE in Fee, by LEASE and RELEASE, of Free- THIS INDENTURE, made the day of in the that mortgagors are seised and possessed as joint year of our Lord, BETWEEN [mortgagors], of &c., of the Parties. one part, and [mortgagees], of &c., of the other part. WHERE- RECITALS, As the said [mortgagors] are now seised as joint tenants of the inheritance in fee-simple in possession of the freehold hereditaments hereinafter referred to, with their appurtenances; AND WHEREAS the said [mortgagors] are now possessed, as joint holds, and of tenants, of the leasehold tenements hereinafter referred to, leaseholds for with their appurtenances, for the unexpired residue of a term of years, commencing from the day of in the year, granted by an indenture bearing date &c., and made between &c., subject to the rent reserved, and the covenants and conditions contained, in the said indenture of lease, on the part of the lessees, their executors, administrators, and tenants of free years; for loan. TESTATUM. holds. Consideration. Operative words. Parcels by reference to a schedule and plan. of agreement assigns, to be respectively paid and observed; AND WHEREAS the said [mortgagees] have, at the request of the said [mortgagors], agreed to lend to them the sum of £—, on having such security for the repayment thereof, with interest, as hereinafter is contained. Now THIS INDENTURE WITNESSETH, Release of free- that, in consideration of the sum of £, paid by the said [mortgagees] on the execution of these presents to the said [mortgagors], who hereby respectively acknowledge the receipt thereof, and therefrom release and discharge the said [mortgagees], their executors, administrators, and assigns, The said [mortgagors] Do, and every of them Doth grant, bargain, sell, and release unto the said [mortgagees], and their heirs, (in their actual possession now being by virtue of a bargain and sale for a year made to them by the said [mortgagors] on consideration of 5s. a-piece, by indenture dated the day next before the day of the date hereof), All the freehold parcels of ground, messuages, buildings, and hereditaments comprised and particularized in the first part of the schedule hereunder written, and also delineated in the plan indorsed on the first skin of these presents, and therein distinguished by being coloured red, Together with the rights, members, and appurAll estate, &c. tenances to the same premises belonging; And all the right, title, and interest, legal and equitable, of the said [mortgagors], and every of them, in or to the same premises; And all deeds, papers, writings, and muniments in their or any of their cusnants for pro- tody or power, relating to the title to the same premises, or duction, &c. any part thereof, with authority (118) to sue in the names or name of them or any of them, their or any of their heirs, executors, or administrators, upon any covenants for the production of deeds, writings, or muniments relating to such title, or any other covenants made or entered into concerning the same premises, or any part thereof: TO HOLD the said freehold hereditaments and premises hereby released, or intended so to be, unto and to the use of the said [mortgagees], their heirs and assigns, Nevertheless redeemable upon the terms hereinafter expressed. AND THIS INDENTURE FURTHER WITNESSETH, that, for the consideration aforesaid, The said [mortgagors] Do, and All deeds, &c., with power to sue on cove HABENDUM. FURTHER Power to sue (118) This authority is introduced to meet the case of a covenant to on personal co-produce, &c., entered into with the mortgagors, but not running with the venant to pro- land. duce. leaseholds. schedule and tive term. every of them Doth, by way of underlease, demise (119) unto Underlease of the said [mortgagees], their executors, administrators, and assigns, All the leasehold parcels of ground, messuages, buildings, Parcels by reand tenements, comprised and particularized in the second ference to a part of the schedule hereunder written, and also delineated in plan. the said plan heretofore referred to, and therein distinguished by being coloured green and yellow, Together with the rights, members, and appurtenances to the same premises belonging: TO HOLD the said leasehold tenements and premises hereby HABENDUM, demised, or intended so to be, with their appurtenances, unto for a derivathe said [mortgagees], their executors, administrators, and assigns, for a term of years commensurate with the residue now unexpired of the said term of years, granted by the said indenture of lease of &c., wanting one day (120) of such residue, Nevertheless redeemable upon the terms hereinafter expressed. PROVIDED ALWAYS, that as well the conveyance Provision deherein before made of the said freehold hereditaments and pre- object of the claratory of the mises, as the demise hereinbefore made of the said leasehold tenements and premises, are so made by way of mortgage (121) for securing to the said [mortgagees], their executors, administrators, and assigns, the payment of the sum of £, with interest for the same after the rate of £5 per cent. per annum ; and that the said [mortgagors], their heirs, executors, administrators, and assigns, shall be entitled to redeem the same freehold and leasehold premises respectively, on payment to the said [mortgagees], or the survivors or survivor of them, his executors or administrators, or their or his assigns, of the said sum of £on the which will be in the year day of with interest for the same after the rate aforesaid, deed and the rights of the parties. (119) A legal term may be derived out of the freehold by way of bargain and sale under the Statute of Uses, without entry, but it cannot be derived out of a chattel interest otherwise than by a demise at the common law perfected by entry. (Vide ante, Vol. 1, p. 122). (120) The legal mortgage of the leaseholds is made by way of underlease, and not of assignment, in order to avoid exposing the mortgagee to liability in respect of the rent and covenants of the lease, which as assignee he would be bound to pay and perform from the execution of the assignment, whether he should enter into possession or not. (But see 5 Jarm. Conv. 233). By a subsequent covenant, (vide post), the equitable security is extended eventually to the remaining interest. (121) Vide post, n. (129). Derivation of term out of a chattel interest. Mortgage of leaseholds by sub-demise. Proviso ena and by equal half-yearly payments, on the day of the day of in every year, without deduction for taxes or otherwise, [and be entitled in the meantime (122) to hold and enjoy the same premises respectively, and receive the rents and profits thereof,] but that if default shall be made in payment of the same sum and interest accordingly, it shall be lawful for the said [mortgagees], or the survivors or survivor of them, his heirs, executors, or administrators, or their or his assigns, (subject nevertheless to the provision next hereinafter contained), to [enter into the possession and the receipt of the rents and profits of the said freehold and leasehold premises, and also to] foreclose the equity of redemption of the same premises. PROVIDED FURTHER, that, notwithstanding such debling the mort- fault as aforesaid, the said [mortgagors], their heirs, executors, the property in administrators, and assigns, shall be entitled at any time after parcels. the said day of in the year and before the absolute foreclosure of the said equity of redemption, to redeem each or any of the parts into which the said freehold and leasehold premises are divided, and to which numbers are affixed in the schedule hereunder written, by giving six calendar months' previous notice in writing of their or his intention to the said [mortgagees], or the survivors or survivor of them, his heirs, executors, or administrators, or their or his assigns, and, on the expiration of such notice, if the same shall expire on either of the said half-yearly days appointed for the payment of interest, or if not, then on such of the same days as shall happen next after the expiration of such notice, paying to the said [mortgagees], or the survivors or survivor of them, his executors or administrators, or their or his assigns, for the redemption of the part or parts intended to be redeemed, such portion or portions of the said sum of £ opposite to such part or parts in the said with the interest for the said sum of £thereof as shall remain due upon this security up to the time of making such payment. PROVIDED FURTHER, that, on redemption of the said freehold and leasehold premises, or any part or parts thereof, under either of the provisions hereinbefore contained, the premises so redeemed shall, at the request and costs of the person or persons redeeming the same, be con Provision for reconveyance on redemption. (122) Vide post, n. (126). as is or are set schedule, together or for so much |