Where there has been a transfer of mortgage.]—If there has been a transfer of mortgage it will be necessary to recite the deed of such transfer, as well as the original mortgage, after which the amount then due upon the mortgage security should be stated; the transferree of the mortgage should then reconvey the mortgaged premises to mortgagor, and the transferree must covenant that he has done no act to incumber: (see the form 2 Con. Prec., Part V., Section X., No. V., pp. 391, 392, 2nd edit.)

Where the purchase and mortgage are both contained in the same instrument.]-We have already noticed that where upon a purchase part of the purchase money has been allowed to remain upon mortgage of the property, both the purchase and mortgage may be contained in the same instrument. Whenever this plan has been adopted, and the mortgaged premises are afterwards redeemed, it will be proper to recite the instrument which embraces both the above-mentioned objects, so as to show clearly the nature of the transaction, but in other respects the form of reconveyance will be the same as in the ordinary case of a reconveyance of mortgaged property: (see the form 2 Con. Prec., Part V., Section X., No. VI., p. 393, 2nd edit.)

Where the mortgage has consisted of mixed kinds of property.]-If the mortgage has consisted of mixed kinds of property, the way in which such property has been limited by the mortgage deed should be recited, and the mortgaged premises must be reconveyed, or be assigned according to the nature and qualities of the various kinds of property: (see the form 2 Con. Prec., Part V., Section X., No. VII., pp. 395, 396, 2nd edit.)

Where mortgaged premises are to be reconveyed under a proviso empowering mortgagor to redeem in parcels.]—When any portion of the mortgaged premises are to be redeemed in pursuance of a power reserved to the mortgagor by the mortgage deed authorizing him to redeem in parcels, the mortgage containing such power must be recited, and the power itself clearly set out, and also the terms and conditions upon which such power is to be exercised. It must then be shown by the recitals that all such terms and conditions have been strictly complied with, and afterwards the mortgaged premises may be reconveyed to the mortgagor in the manner we have before pointed out (ante, p. 442); but, in addition to the covenant from the mortgagee that he has done no act [P. C.]

2 Q

to incumber, it will be necessary to insert a covenant from him to produce all such title deeds relating to the reconveyed premises as are still retained in his custody in consequence of their relating also to the title of the remaining portion of the mortgaged property: (see the form 2 Con. Prec., Part V., Section X., No. VIII., pp. 400 to 402, 2nd edit.)

Where the reconveyance is by the mortgagee's representatives.]-In case of the mortgagee's death, his representatives must of course be the parties to reconvey the mortgaged premises, and if the mortgage consists of freehold estate, or of copyhold or customary lands of inheritance, both his real and personal representatives must be concurring parties; the former to convey the legal estate of the mortgaged premises, the latter to release the mortgage debt. If the deceased mortgagor has made no devise capable of passing mortgaged estates, then his heir is of course the proper party to convey; but if there is a devise capable of passing mortgage estates, then the reconveyance must be made by the devisees, and the heir becomes an unnecessary party. It will be requisite, however, that all the devisees should concur in an assurance of this nature, for having only a joint power and authority, they cannot exercise it separately (Hudson v. Hudson, 1 Atk. 460); and the like rule also holds with respect to administrators; but it is otherwise with respect to executors, as the latter take both a joint and a several interest in the property of their testator, so that a disposition by any one of them will be binding on all the rest: (1 Eq. Ča. Abr. 319.)

Where the mortgage is of a chattel interest.]—If the mortgaged premises consist of a term of years, or of any other kind of chattel interest, real or personal, then, as the mortgagee's personal representatives are the only persons who take any transmissible interest through him in this kind of property, they are the only persons who can re-assign the same to the mortgagor upon his paying off the mortgage debt, and thus redeeming the mortgaged premises.

Mortgagor's representatives may be compelled to reconvey.] -In all reconveyances of mortgaged estates the mortgagee's representatives may always be compelled to concur in an assurance for the purpose of reconveying such legal estate as may be vested in them in their representative character, either as heir, devisees, or personal representatives of the deceased mortgagee, without any reference as to whether they derive any benefit or otherwise from concurring in such

conveyance; nor will the circumstance of an heir-at-law having been disinherited by his ancestor of everything but this dry unprofitable legal estate, afford the latter any pretext or excuse for his refusal to reconvey the same to the persons entitled to the equity of redemption upon the latter paying off the mortgage debt, and thereupon claiming to redeem the mortgaged premises.

Where a mortgagee shall die without an heir, &c.]-And in any case where the mortgagee, or any devisee or heir of him, shall have died without an heir, or it shall not be known who was his heir, or in case of the neglect or refusal of any such heir, devisee, or representative to convey such land for the space of twenty-eight days after a proper deed for making such conveyance shall have been tendered for his execution, the Court of Chancery is empowered to appoint any person for that purpose in the place of such heir, devisee, or representative, to convey the mortgaged premises; which conveyance is to be as effectual as if such heir, devisee, or representatives had actually executed the same: (1 Will. 4, c. 60, ss. 3 to 6; 1 & 2 Vict. c. 69.)

Where the heir is an infant.]-In case the mortgagee's heir should be an infant, the Court of Chancery is authorized to make an order vesting the mortgaged lands in any person or persons the court may think proper to direct, and the order shall have the same effect as if the infant had been twenty-one years of age, and had duly executed the conveyance or assignment of the same lands in the same manner and for the same estate: (see the form 1 Con. Prec., Part I., Section II., No. XXII., pp. 126, 130, 2nd edit.)

Where the heir is a lunatic.]—If the mortgagee is a lunatic, the Lord Chancellor may direct the committee to convey under the provisions of the statutes 6 Geo. 4, c. 74, 11 Geo. 4, and 1 Will. 4, c. 60.

CHAPTER VIII.

OF THE MORTGAGEE'S REMEDIES.

I. OF THE VARIOUS KINDS OF REMEDIES A MORTGAGEE MAY

RESORT TO.

II. OF THE PRIORITY OF INCUMBRANCES, AND THE TACKING OF INCUMBRANCES AS BETWEEN PRIOR AND SUBSEQUENT MORTGAGEES.

III. OF PROCEEDINGS BY ENTRY AND EJECTMENT.

IV. OBTAINING RECEIPT OF THE RENTS AND PROFITS.

V. PROCEEDINGS BY ACTION ON THE BOND OR COVENANT. VI. FORECLOSURE.

VII. POWERS AND TRUSTS FOR SALE.

I. OF THE VARIOUS KINDS OF REMEDIES A MORTGAGEE MAY RESORT TO.

A MORTGAGEE is armed with various remedies for the protection and security of his interests. 1. He may obtain the actual possession of the mortgaged premises either by entry or ejectment. 2. He may get into the receipt of the rents and profits by giving notice to the tenants, the payment of which he may, after such notice, enforce by distress in the same manner as the mortgagor himself could have done. 3. He may support an action of covenant against the mortgagor for the mortgage debt and interest upon the covenant for the payment of the same contained in the mortgage deed, or an action of debt upon the mortgage bond, where any such bond has been employed as an accompanying or collateral security; and where there is a covenant to pay the interest distinct from the mortgage debt, he may maintain an action upon such covenant; and where a warrant of

attorney has been given by way of collateral security, and a judgment entered up thereon, he may proceed at once to sue out execution upon such judgment; and where the consideration for the mortgage is a transfer of stock which the mortgagor undertakes to retransfer into the mortgagee's name on some appointed day, or else to pay him an equivalent sum of money, the mortgagee may recover from the mortgagor, by action at law, a sum equivalent in value of the stock at the time of such transfer, without reference to its having fallen considerably lower at the time of trial; a subject that has already been discussed in a preceding part of the present work: (see ante, p. 388.) 4. He may file his bill in equity for a foreclosure: and 5, which is the most modern, and usually his best and most efficient remedy, he may, whenever the mortgage deed contains either a trust, or a power of sale, sell under such trust or power, and retain out of the purchase moneys his principal, interest, and costs, paying over the surplus moneys, if any, to the mortgagor or his representatives.

II. OF THE PRIORITY OF INCUMBRANCES, AND THE TACKING OF INCUMBRANCES AS BETWEEN PRIOR AND SUBSEQUENT MORT

GAGEES.

Where there are several mortgagees of the same property, the first mortgagee in priority of time who has the legal estate will be preferred to all the rest, and then the others will follow according to their respective priorities: (Right v. Bucknell, 2 B. & Ad. 283.)

First mortgagee making further advances, without notice, entitled to priority over second mortgagee.]—If a prior mortgagee, without notice of a subsequent mortgage, advances a further sum to the mortgagor upon a judgment or other security, he will be entitled to tack the latter securities to his mortgage, and retain against a subsequent mortgagee or other subsequent incumbrancer until both his securities are satisfied: (Shepherd v. Titley, 2 Atk. 352.) But although a mortgagee may tack a subsequent judgment, a judgment creditor cannot do so, because the latter has merely a lien upon the land, and no actual estate in it. Hence, if a creditor by judgment, statute, or recognizance, buys in the first mortgage, he cannot tack, because he did not lend the money on the credit of the land: (Beavan v. Earl of Oxford, 26 L. T. Rep. 277.) And in order to enable a mortgagee to tack his securities, he must either have the legal estate,