Notice should always be given to mortgagor prior to offering mortgaged premises for sale.]—Notice of sale should always be served on the mortgagor, and where, as is commonly the case, a mortgagee enters into a covenant to that effect, he would render himself liable to an action at the mortgagor's suit for omitting to do so. The notice should be served in the same manner as other notices, and the mortgagee should preserve a duplicate, which is particularly necessary where the terms of the power prescribe some specified notice, as six calendar months for instance; in which case the giving such notice may be considered as a condition precedent to the exercise of the power, and therefore proof of such notice may thus form an important link in the chain of the title.

Sale, how conducted.]-The sale is conducted in the same manner as in ordinary transactions between vendor and purchaser; and, under ordinary powers of sale, the mortgagee can make an effectual conveyance without the mortgagor's being a concurring party therein, whose concurrence in fact he has no power to compel, notwithstanding the mortgage deed should contain an express covenant by the mortgagor to concur in any sale the mortgagee might make of the mortgaged premises (Clay v. Sharpe, 18 Ves. 346); and it seems that if a purchaser should refuse a specific performance on the ground of the mortgagor not being made a party, it would be decreed against him with costs: (1 Hughes Pract. Mort. 67.) There is, in fact, no advantage in making the mortgagor a party where the mortgagee takes an absolute power of sale under the mortgage deed; and so far from its being essential that the mortgagor should enter into covenants for title with the purchaser, the purchaser would, in the absence of his so doing, have the full benefit of the mortgagor's general covenants for title and other covenants running with the land entered into by him in the mortgage deed, but which the latter would be exonerated from altogether, upon his entering into the usual qualified covenants for title of a vendor under ordinary circumstances, which are all he could be called upon to do, if he concurred in the conveyance to the purchaser: (see the forms of conveyances by mortgagees under power of sale, 1 Con. Prec., Part II., Section I., Nos. XIX. and XX., pp. 112 to 122, 2nd edit.)

Mortgagee cannot be required to enter into covenants for title.]-A mortgagee, conveying under a trust or power of sale, cannot be required to enter into covenants for title; the only covenant he may be required to enter into is, that he has done no act to incumber the mortgaged premises.

As to the exercise of powers of sale by second mortgagees.] -A second mortgagee, as long as a prior mortgage of the legal estate subsists, can only exercise a power or trust for sale subject to the prior mortgage; but such second mortgagee may redeem the prior mortgage, and thus confer a good title to a purchaser in the same way as an ordinary vendor, who sells upon redeeming the mortgage, who is entitled to call upon the mortgagee to reconvey the mortgaged premises to him or any other person he may think proper to appoint.

Application of the purchase moneys.]-The moneys arising from the sale should be first applied in paying the incidental expenses of the sale; next, in liquidation of the mortgage debt; and then the surplus moneys, if any, are to be paid over to the mortgagor or his representatives. If the sale is in pursuance of a power, and consists of freehold property, or of copyhold or customary estates of inheritance, and is made in the mortgagor's lifetime, but the purchase moneys not paid until afterwards, then such money will be payable to the mortgagor's personal representatives; and if the sale does not take place until after the mortgagor's death, in such case the mortgagor's heir, or the devisee of the mortgaged premises, upon whom the equity of redemption will have descended or to whom it will have been devised, will be entitled to the surplus moneys, which must be paid to such heir or devisee accordingly. But if the property is sold under a trust for sale, as there will be a constructive conversion of the real and personal estate by the creation of the trust, the surplus moneys must be paid to the personal representatives without any reference as to the time when such trust is exercised; as it also must where the mortgaged premises consist of a chattel interest, which of course will be transmissible to the personal representatives, and upon which the heir has no kind of claim whatever.

CHAPTER IX.

STAMP DUTIES ON MORTGAGES AND BONDS, AND ALSO UPON WARRANTS OF ATTORNEY.

I. STAMP DUTIES UPON ORIGINAL MORTGAGES.

II. STAMPS UPON TRANSFERS OF MORTGAGE.

III. STAMPS UPON RECONVEYANCE OF MORTGAGED PREMISES.

THE same amount of ad valorem duties are payable upon a bond as upon a mortgage, all which are now arranged in a graduated scale in proportion to the sum secured, commencing at a duty of 1s. 3d. on sums not exceeding 501., and so on at the same rate for every 50l. or fractional part of 501. on sums not exceeding 3007., and for sums exceeding the latter amount a duty of 2s. 6d. for every 1007, and fractional parts of 1007.

Improvement of graduated scale upon the old system.]—This graduated scale is a great improvement upon the old system, which, under an ill-arranged scale of duties, threw the heaviest burden of duty upon the smallest sums, and thus pressed hardly upon the shoulders of a class of people who were the least able to bear its weight, as may easily be perceived by the annexed table, in which the old and new duties are separately set out.

A Comparative Table of Old and New Stamp Duties on Bond, Mortgage, or Warrant of Attorney, for securing the Payment of a Definite and Certain Sum of Money.

Duties regulated by the amount secured.]—The amount of ad valorem duties are regulated by the amount of principal moneys secured, without any regard to interest, the words "definite and certain sum, as contained in the Stamp Acts, being considered to refer to the principal sum only, so that the interest, whether bygone or subsequent, is in the nature of damage for the nonpayment of the sum advanced, and does not fall within the meaning of a definite and certain sum: (Barker v. Smart, 7 M. & W. 50; Foreman v. Leyes, 5 Car. & P. 419.) And where the payment is secured by bond, the principal so secured, and not the sum inserted by way of penalty in the bond, is the sum on which the ad valorem duty must be charged.

Where the sum secured is of uncertain amount.]—Where either a bond (Scott v. Allsop, 2 Pri. 20) or a mortgage (Halse v. Peters, 2 B. & A. 807) was given to secure an uncertain amount, a stamp adapted to the highest sum, viz., a 251. stamp, would have been necessary; but now the total amount secured is uncertain and without limit, then the same shall be available as a security for such an amount

of money as the ad valorem stamps impressed thereon will extend to cover: (13 & 14 Vict. c. 97, schedules, BOND, MORTGAGE.)

What kinds of expenditure, although becoming a further charge on mortgaged premises, are exempt from ad valorem duty.]-It is important, however, to remark here, that there are certain kinds of expenditure upon which, although in the nature of further charges, upon which no ad valorem duty will attach, notwithstanding the mortgaged premises are charged with the repayment, and are not to be redeemable until such charges are fully satisfied. In order to render the property liable to ad valorem duty on mortgages, the expenditure must be such as is not strictly incidental to a mortgage; hence, a proviso that all such sums of money as a mortgagee shall expend in the recovery of a mortgage debt, or in effecting the renewal of any leases (Jarman v. Larder, 2 Hodges, 186), shall be a further charge on the mortgaged premises, will be covered by an ad valorem stamp adapted to the sum originally advanced; for expenses of this nature are always allowed to a mortgagee without any provision whatever respecting them: (Mereeson v. Bragg, 8 Ad. & Ell. 620.) With respect to fire insurances, also, the General Stamp Act (55 Geo. 3, c. 184) expressly exempts sums so expended; although it is otherwise with respect to money expended in effecting or keeping up policies of assurance upon lives, which, if charged in any way upon the mortgaged premises, would have required an ad valorem stamp adapted to the sum to which the charge was limited, and if no limit in amount was specified, then the highest amount of duty chargeable upon a mortgage security, viz. 257., would have attached.

Ad valorem stamp, however large in amount, will not cover any principal moneys beyond the limit in amount expressed on mortgage deed.]—But although, where no limit in amount is mentioned, the instrument will be available as a security for so much money as the stamp impressed upon it will extend to cover, still the converse of this rule will not prevail, so as to permit a stamp, on account of its higher amount of ad valorem duty, to become available to secure a sum beyond the limit in amount expressly mentioned in the mortgage deed. Such, indeed, was the law prior to the act 13 & 14 Vict. c. 97, which has not since been altered by that or by any other enactment: (Richards v. Macclesfield, 10 L. J. (N. S.) 329, Chan.)