prevail upon him if possible to enter into a covenant to deliver over the title deeds to the second mortgagee, in case the prior mortgage should be paid off. It will also have this additional advantage, that it will give the first mortgagee express notice of the whole nature of the transaction, and dispense with any other notice being given him.

Practical directions for preparing the mortgage of an equity of redemption.]-The mortgage deed of an equity of redemption should always recite the first mortgage, the amount of principal and interest thereby secured, as also how much thereof is then owing upon the mortgage security, and that the advance thereby made, and security thereby intended to be given, is to be subject to the pre-existing mortgage; the property should be then conveyed to the second mortgagee, with proviso for redemption, power of sale, and all other usual mortgage covenants, but all subject and without prejudice to the prior mortgage security; and in addition to the other usual covenants, the mortgagor should also covenant that in case the pre-existing mortgage shall at any future time be paid off, the title deeds shall be delivered to the second mortgagee: (see the form 2 Con. Prec., Part V., Section II., No. XVII., pp. 121, 127, 2nd edit.)

Where first mortgagee is made a concurring party.]—If the first mortgagee is a concurring party, he should be the last party named, and he should neither convey nor confirm, or in fact concur in any other manner in the assurance, except that where he is to covenant to produce the title deeds, he should enter into such covenant accordingly; the proper place for inserting which is at the very end of the deed after the covenants from the second mortgagee, that the mortgagor shall enjoy until default, and not to exercise power of sale without giving the latter due notice thereof; (see the form 2 Con. Prec., Part V., Section II., No. XVII., clauses A. and B. in notis, pp. 125, 126, 2nd edit.)

Where original mortgagee is not a party, second mortgagee should give him immediate notice.]-If the first mortgagee is not made a party, the second mortgagee should immediately upon completing the mortgage give the former due notice thereof: (see the form 2 Con. Prec., Part V., Section XII., No. XIII., p. 440, 2nd edit.), otherwise the first mortgagee, that is, supposing him to have the legal estate, would be enabled, in the absence of any such notice, to tack

any subsequent advance he might make to his original mortgage security, which would overreach the intermediate mortgage, of which the prior mortgagee had no notice at the time he made such further advance: (Wrightson v. Hudson, 2 Eq. Cas. Abr. 609, pl. 7.) But the first mortgagor will not be entitled to this preference, unless he has also the legal estate in him; for if it be outstanding in a third party, then both the equities will be equal, so that it is only throwing the legal estate into the scale, that the first mortgagor's advance would be entitled to a priority: (Brace v. Duchess of Marlborough, 2 P. Wms. 494.)

Mortgagor should give immediate notice of second mortgage to prior mortgagee.]-The mortgagor should also give immediate notice of the mortgage to the prior mortgagee, otherwise he will risk losing his right of redemption: (stat. 4, Will. & M. c. 160.) The best mode of giving such notice is to forward the prior mortgagee an attested copy of the second mortgage deed.

Distinction between an equity of redemption and a legal reversion expectant on a mortgage term.]-It may not be improper in this place to remark, that there is a distinction between an equity of redemption, and a legal reversion expectant on a mortgage term; the former being equitable, the latter legal assets, so that a mortgage in fee, although expectant on a long term of years, will take precedence of mere equitable incumbrances; hence, whenever the first mortgage is only for a term, the solicitor for the second mortgagee should always insist upon having a conveyance of the legal reversion expectant thereon; still, this will not prevent the mortgagee of the term from tacking any future advances where he has no notice of the second mortgage; it will, therefore, be quite as necessary for the mortgagee of the legal reversion to give the prior mortgagee notice of his mortgage, in a case like the present one, as in the case of a mortgage of the simple equity of redemption: (Brace v. Duchess of Marlborough, sup.)

CHAPTER III.

MORTGAGES OF CONTINGENT, EXECUTORY, AND REVERSIONARY ESTATES AND INTERESTS; ESTATES FOR LIFE; TERMS OF YEARS; AND OTHER UNCERTAIN INTERESTS.

I. MORTGAGES OF CONTINGENT, EXECUTORY, AND REVERSIONARY ESTATES AND INTERESTS.

II. MORTGAGES OF ESTATES FOR LIFE.

III. ESTATES PUR AUTRE VIE, FOR YEARS DETERMINABLE ON LIVES, AND FOR TERMS OF YEARS ABSOlute.

1. Mortgage of an estate pur autre vie.

2. Mortgages of estates for years absolute, and for terms of years determinable on lives.

I. MORTGAGES OF CONTINGENT, EXECUTORY AND
REVERSIONARY ESTATES AND INTERESTS.

Contingent estates do not afford a marketable title.]—We have already noticed (ante, p. 72), that contingent and executory estates do not afford a marketable title; and that even whether they will confer a safe holding title or otherwise will entirely depend upon the individual circumstances of each particular case. If the contingency upon which the estate is to determine is an event likely to happen; as in the case of a devise in fee, subject to a limitation over by way of executory devise on the decease of the devisee without leaving issue at the time of his or her decease, and such devisee has no issue, or the probability of ever having any, this, although nominally

a fee simple estate, is in reality no better than a mere life estate, and probably a very uncertain one; whilst if he has issue, the test, as to its safety as a holding title will depend upon the probability of such issue surviving their ancestor. In either case, however, if the property is of adequate value, it may be rendered an available mortgage security, in the first place by effecting an assurance in the amount of mortgage money, upon the life of the devisee of the contingent estate, and in the other by effecting a like assurance upon the life of any one of the issue; for if any one of the latter should survive the ancestor, then his contingent fee simple estate would become absolute, and the mortgagee would thus acquire a perfect title to the premises.

When mortgagee may safely rely on a mere covenant to assure lives.]—In those cases, indeed, where the proposed mortgagor has many children or other numerous issue, a mortgagee may often safely rest satisfied with a covenant from the former to effect an assurance upon the lives of some one of his issue at the mortgagee's request, with power for the latter to do so in case of default, and to charge the expenses by way of further charge upon the mortgaged premises.

As to estates in remainder or reversion.]—Estates in remainder or reversion form a very indifferent mortgage security, as they neither yield an immediate right to the possession, or afford an existing fund for discharging either principal or interest; added to which the mortgagee, having no right to the custody of the title deeds, is liable to take subject to incumbrances he may be altogether ignorant of still, if a mortgagee is content to advance his money upon a security of this nature. he has a perfect legal right to do so.

How mortgage of a reversionary estate should be made.]— The proper mode of assurance for effecting a mortgage of an estate in remainder or reversion, is by a deed of release, which was indeed the proper mode of conveyance even before the lease for a year was dispensed with by the recent act (4 Vict. c. 21); for such lease for a year, which preceded the deed of release, purporting to confer the actual possession, was clearly inconsistent with the conveyance of an estate in remainder or reversion.

Suggestions as to framing mortgages of reversionary interests.]—In mortgages of reversionary interests, although

it is a common practice to insert a power of sale, still, as property of this kind is not very saleable, it is often arranged that the time of previous notice to the mortgagor shall be extended beyond the usual limit required in mortgages of estates in possession. Sometimes, also, it is provided that the mortgagee will not call in his money until some fixed time, provided the mortgagor in the interim pays the interest regularly at certain stated periods; an arrangement which, whilst it protects the mortgagee so long as his interest is punctually discharged, protects also the mortgagor from the heavy loss he might otherwise incur by a premature sale of the property, before it either falls into possession, or is enhanced in value by the effluxion of time rendering the prospect of such possession more immediate: (see the form 1 Huges Pract. Mort., F. No. I., 228.)

Reversionary interests often included with other property to make up value of mortgage security.] -Reversionary estates, although considered as an inadequate security, are often included with estates in possession in the same mortgage assurance for the purpose of strengthening the whole security in those cases where a considerable advance has been made in proportion to the value of the other portions of the property. Whenever this occurs, it should always be provided in the power of sale, that the property in possession shall be first sold for the purpose of satisfying the mortgage, before any portion of the reversionary property shall be applied to that purpose: (see a form that may be adapted for this purpose, 2 Con. Prec., Part V., Section VII., No. II., clause 16, p. 314, 2nd edit.)

As to contingent, executory, and reversionary interests.]— Contingent, executory, and reversionary interests afford even a worse mortgage security than the reversionary estates we have just before been treating of, as from their contingent nature, they may, instead of becoming vested interests, fail of effect altogether. Upon the probability of the happening of the contingency upon which the estate is to become vested, the safety of the security must therefore depend. The chance of its vesting may be a very remote one; as depending on failure of issue of a person in his lifetime, who may be advanced in years, and have one or more children or other issue, or such chance may be beyond the hope of possibility, as where such issue are numerous, with every probability of an increase; or on the other hand, the con