CHAPTER II. MORTGAGES OF FREEHOLD ESTATES. I. GENERAL OUTLINE OF PRACTICE. II. MORTGAGE DEEDS IN GENERAL. III. PRACTICAL DIRECTIONS FOR PREPARING A MORTGAGE DEED OF A FEE SIMPLE ESTATE. 1. As to the date and parties. 2. Recitals. 3. Of the testatum or granting clause. 4. Habendum. 5. Proviso for redemption. 6. Powers and trusts for sale. 7. Covenants. 8. Special powers. IV. MORTGAGES BY DEMISE. V. MORTGAGES OF ENTAILED PROPERTY. VI. MORTGAGE OF AN EQUITY OF REDEMPTION. I. GENERAL OUTLINE OF PRACTICE. Mortgages of freehold estates, how conducted.]-In mortgages of freehold estates, and in fact of every kind and description of real property, the mortgagor's solicitor, at his client's expense, furnishes and delivers an abstract of the title to the solicitor of the mortgagee, the latter of whom investigates the title precisely in the same way as upon a purchase; makes his objections and requisitions in like manner; and if these are satisfactorily answered and complied with, he institutes the necessary search and inquiry for incumbrances, and when every doubt and difficulty is cleared up, he prepares the mortgage deed. This is always done by the mortgagee's solicitor at the costs of the mortgagor, upon whom it devolves to pay all the costs incurred throughout the whole course of the transaction. Assurances for perfecting title prepared by mortgagor's solicitor.]-If any previous assurances are necessary for the purpose of enabling the mortgagor to confer a good title, such as the getting in of outstanding legal estates, or the execution of any statute deeds in order to bar entails, the release of any charges or incumbrances on the lands, or any other acts or matters connected with the title, the mortgagor must of course defray the costs of all these assurances; still, as these are matters of title, which it is the mortgagor's business to supply and perfect, his solicitor, and not the solicitor of the mortgagee, is the proper person to prepare them. Course to be pursued by mortgagor's solicitor in preparing assurances to perfect title.]-For the same reasons, the mortgagor's solicitor, who prepares these assurances, is in nowise bound to forward the drafts of them to the mortgagee's solicitor for approval previously to their engrossment. The mortgagor's solicitor's duty is to see that such assurances effect their designed object; and when this has been done, and such assurances are completed, they become part of the mortgagor's title, an abstract of which should be prepared by his solicitor, and transmitted to the solicitor of the mortgagee; the latter of whom should then act in the same manner respecting them as if they had formed part of the original abstract of title to the premises. Mortgagee's solicitor must prepare and forward draft of mortgage deed.]-The draft of the mortgage must be prepared and forwarded by the mortgagee's solicitor to the solicitor of the mortgagor, in precisely the same way as the draft of a deed of conveyance from vendor to purchaser, and in like manner no alteration, however slight and trivial, should be made by either party after approval, without acquainting the other of the circumstance, and nature of the alteration, previously to the engrossment of the deed. II. MORTGAGE DEEDS. Instruments used as mortgage assurances.]-The same kind of instruments have been used in mortgages as in absolute conveyances of property. Hence, when a feoffment with livery of seisin was the ordinary mode of conveyance from à vendor to a purchaser, the same mode of assurance was adopted in mortgages when the fee simple in the lands was intended to pass and become vested in the mortgagee, or any other person in his behalf; and when feoffiments gave way to conveyances by way of lease and release, the latter kind of assurances were in like manner adopted as mortgage securities. In small mortgage transactions, appointments in pursuance of powers, where the mortgagor had such a power vested in him, were often resorted to in order to save the expense of a lease for a year. But now the lease for a year (4 & 5 Vict. c. 21), and the stamp duties respecting it being dispensed with (8 & 9 Vict. c. 106), a conveyance by way of grant and release is now become the general mode of assurance in mortgages of fee simple estates. Mortgages in fee more common now than in ancient times.] -Mortgages in fee simple are more common in the present than they were in ancient times, when a preference was generally given to creating those assurances by limiting a long term of years, which was granted to the mortgagee himself, or some other person in trust for him. The reason for adopting this preference arose in great measure from the old doctrine that the estate being absolute at law, became liable to the dower of the mortgagee's wife, and also to his other real charges and incumbrances; but courts of equity have long since broken through these strict rules of law, treating the mortgage as it really is, a pledge in the nature of a security for the payment of money, but conferring rights upon the mortgagee perfectly distinct from what he would acquire as an ordinary purchaser of the absolute interest in the property; for although the legal estate will descend upon his heir-at-law, the latter will only hold for the benefit of the personal representatives, all the beneficial interest being, in equity, considered as personal estate: (Ellis v. Grave, 2 Cha. Cas. 50; Canning v. Hicks, ib. 187; Tavor v. Grover, 2 Vern. 367.) Upon an estate of this kind no right of dower could possibly attach, and therefore that difficulty was long since removed, as also those difficulties arising from the doctrine that the mortgaged premises would become subject to the other real charges and incumbrances of the mortgagee, but which it has long since been determined they are not liable to. Arguments urged in favour of a long term of years as a mortgage security.]-One strong argument in favour of a long term of years as a mortgage security is, that in case of the mortgagee's death both the term itself and the mortgage debt become vested in the same person; whereas, in the case of a mortgage in fee, as we have just before remarked, the estate of the mortgagee goes to the heir, and the mortgage debt to his personal representatives, thus producing a separation of rights attended with some degree of inconvenience both to mortgagor and mortgagee, but which was in great measure counterbalanced in favour of the latter, by enabling him, in case of foreclosure, to acquire the whole fee; whereas, in case the mortgage had been only for a term, he would only have been entitled to acquire the term. To get over the latter inconvenience, a practice sprung up of making the mortgagor covenant that, upon nonpayment of the money, he would not only confirm the term, but also convey the freehold and inheritance to the mortgagee, discharged of all equity of redemption: (2 Fonbl. Eq. 256; and see Butler's note to Co. Litt. 206.) Trusts and powers of sale in mortgage assurances. es.]-The process of foreclosure, which in former times was not only a most tedious, but also costly mode of proceeding, led to the introduction of trusts and powers of sale in mortgage deeds, which at length became so general as nearly, if not entirely, to supersede the foreclosure process altogether. Great improvements have, however, been latterly made in proceedings by foreclosure, as well in saving time as in expense, but this is a subject we shall enter into more fully hereafter. Mortgage in fee, and for a term, to the same mortgagee, sometimes comprised in the same instrument.]—In certain cases both a fee and a term of years are limited to the same mortgagee. This plan has been resorted to where two mortgagees advance money at the same time upon the same estate, and each of them is desirous of having a lien upon the whole property, and yet of avoiding the interposition of a mutual trustee for that purpose. To accomplish this object, one moiety of the estate is limited to one mortgagee for a long term of years, with remainder to the other mortgagee in fee, and so vice versâ, so that each mortgagee is first mortgagee for a term and second mortgagee in fee of one moiety, and second mortgagee of a term and first mortgagee in fee of the other moiety: (see the form of a mortgage of this kind, 2 Con. Prec., Part V., Section II., No. XIV., p. 107, 2nd edit.) Mortgage deeds should be made by indenture.]—Mortgage deeds have almost invariably been made by indenture, for a deed poll being of one part, and binding only the maker, is ill adapted to assurances of this kind, which ought to be binding and conclusive on all the parties. III. PRACTICAL DIRECTIONS FOR PREPARING A MORTGAGE DEED OF A FEE SIMPLE ESTATE. 1. As to the Date and Parties. The title and date of the instrument, and description of the parties, is precisely the same as in a purchase deed, a subject that has been sufficiently treated upon in the foregoing part of this work to render comment here superfluous. 2. Recitals. It is inexpedient to load the mortgage deed with unnecessary recitals. If, therefore, the mortgagor has the title deeds, which it is the practice always to deliver over to the mortgagee, it will be superfluous to set out recitals of them in the mortgage deed, beyond showing how, and in what manner, the mortgagor became possessed of, and is entitled to dispose of, the mortgaged premises. How limitations to dower uses should be recited.]—If the property was conveyed to the mortgagor to uses to bar dower, then such conveyance should be recited (see the form 2 Con. Prec., Part V., Section II., No. I., clause 2, p. 32, 2nd edit.), and the mode in which the uses are limited should be set out, but this, if necessary, may be done very briefly: (see the form 2 Con. Prec., Part V., Section II, No. II., clause 2, p. 44, 2nd edit.) And where the conveyance is simply in fee, the recital may generally be very concise: (see the form 2 Con. Prec., Part V., Section II., No. V., clause 2, p. 60, 2nd edit.) In the latter case, or indeed in most cases where the mortgagor is seised simply in fee, and brevity is |