mises to the use of the said C. D., his heirs and assigns, in manner aforesaid, as by him or them shall be reasonably required; PROVIDED NEVER- Proviso for THELESS, that it shall be lawful for the said A. B., ment by

quiet enjoy

mortgagor

his heirs and assigns, to hold all the said premises till default. until default shall be made in payment of the said or the interest thereon, or some

sum of £ part thereof respectively, contrary to the aforesaid proviso for payment of the same, without any interruption by the said C. D., or any person lawfully or equitably claiming through him (a). AND Power of sale. IT IS HEREBY DECLARED, that, if default shall be made in payment of the said sum of £— or the interest thereon, or any part thereof respectively, on the day of next, it shall be

lawful for the said C. D., his executors, administrators, or assigns, at any time or times thereafter, without any further consent on the part of the said A. B., his heirs or assigns, to sell the said premises, or any part thereof, either together or in parcels, and either by public auction or private contract, with full power to buy in or rescind any contract for sale, and to re-sell without being responsible for any loss which may be occasioned thereby; AND TO DO and execute all such acts and assurances for effectuating any such sale as the said C. D., his executors, administrators, or assigns, shall think fit; AND THAT, upon a sale on sale made by any person or persons who may not be seised representa

(a) The proviso for quiet enjoyment until default is of very little practical use, and may be omitted.

by personal

tives, persons of the legal estate, the person in whom the having legal estate to join. legal estate shall be vested shall do and execute

be exercised

till certain events shall happen.

such acts and assurances for carrying the sale

into effect as the person or persons by whom the sale shall be made shall direct: PROVIDED Power not to NEVERTHELESS, that the said C. D., his executors, administrators, or assigns, shall not execute the power of sale hereinbefore contained until he or they shall have given to the said A. B., his heirs, executors, administrators, or assigns, or left on the said premises, a notice in writing to pay off the monies for the time being owing on the security of these presents, and default shall have been made in such payment for six calendar months after giving or leaving such notice, or until some half-yearly payment of interest, or a part of some such half-yearly payment, shall have become in arrear for three calendar months (a): PROVIDED bound to see ALSO, that, upon any sale purporting to be made in pursuance of the aforesaid power, no purchaser shall be bound to inquire whether either of the cases mentioned in the clause lastly hereinbefore contained has happened, nor whether any money remains upon the security of these presents, nor as to the propriety or regularity of such sale; and notwithstanding any impropriety or irregularity

Purchasers

not to be

that such

events have happened.

(a) This proviso is, in most cases, of little practical value, and may be omitted; for a mortgagee is not disposed to sell the property, if he can get his money by demanding it. If this clause be left out, the words in the next clause referring to it should be omitted.

whatsoever in any such sale, the same shall, as regards the purchaser or purchasers, be deemed to be within the aforesaid power, and be valid according

receipt to be a

purchasers.

chase-money.

ly. AND IT IS HEREBY DECLARED, that the re- Mortgagee's ceipt of the said C. D., his executors, administra- discharge to tors, or assigns, for the purchase-monies of the premises sold, or any part thereof, shall effectually discharge the purchaser or purchasers therefrom and from being concerned to see to the application thereof, or being accountable for the non-application or mis-application thereof. AND IT IS HEREBY Trusts of purDECLARED, that the said C. D., his executors, administrators, and assigns, shall hold the monies to arise from any sale in pursuance of the aforesaid power, UPON TRUST, in the first place, thereout to pay all the expenses incurred on such sale, or otherwise in relation to the premises; And, in the next place, to apply such monies in or towards satisfaction of the monies for the time being owing on the security of these presents; And then to pay the surplus (if any) of the monies arising from such sale to the said A. B., his heirs or assigns: PRO- Mortgagee's VIDED ALWAYS, that the said C. D., his exe- clause. cutors, administrators, or assigns, shall not be answerable for any involuntary losses which may happen in the exercise of the aforesaid power and trusts, or any of them (a). IN WITNESS &c.

THE SCHEDULE to which the above-written INDENTURE refers.

(a) It is usual to provide, that the right of foreclosure shall not be affected by the power of sale; but the precau

indemnity

Parties.

XVII.

MORTGAGE in FEE, with POWER of SALE to
SEVERAL MORTGAGEES.

THIS INDENTURE, made &c.,

BETWEEN

A. B., of &c. [mortgagor], of the one part; and C. D., of &c., E. F., of &c., and G. H., of &c., Witnesseth. [mortgagees], of the other part, WITNESSETH, Considera- that, in consideration of the sum of £ - this

tion.

Receipt.

day paid to the said A. B. by the said C. D., E. F., and G. H., (the receipt whereof the said A. B. doth hereby acknowledge), he the said A. B. doth hereby, for himself, his heirs, executors, and admiCovenant for nistrators, COVENANT with the said C. D., E. F., mortgage- and G. H., their executors and administrators, that he the said A. B., his heirs, executors, or admini

re-payment of

money, with interest, at

tion can hardly be deemed necessary, for there is no ground to suppose that the mortgagee, under a properly drawn mortgage, loses any of his rights as a mortgagee by arming himself, in addition, with a power of sale. In the case of bankruptcy, for instance, it has been expressly decided that a mortgagee may waive his power of sale, and have the estate sold under an order in bankruptcy in the usual way. (Ex parte Hodgson, 1 Glyn. & Jam. 12; Ex parte Davis, 1 Mont. & Ayr. 89; S. C., 3 Dea. & Chit. 504). The notion of the power of sale affecting the right of foreclosure probably arose from the circumstance, that there is no right to foreclose under a security made by a trust for sale, because there is, in that case, no proper mortgage at all.

months.

strators, will pay unto the said C. D., E. F., and the end of six
G. H., or the survivors or survivor of them, or the
executors or administrators of such survivor, their
or his assigns, the sum of £ [the principal

sum], with interest for the same in the meantime
at the rate of £-
per cent. per annum, on the
next (a), without any deduction

day of

secondly.

or abatement whatsoever. AND THIS INDEN- Witnesseth TURE ALSO WITNESSETH, that, for the consideration Conveyance. aforesaid, he the said A. B. doth hereby grant unto the said C. D., E. F., and G. H., their heirs, and assigns, [parcels-general words, supra, p. 96],

redemption.

TO HOLD the said premises UNTO the said C. D., Habendum. E. F., and G. H., their heirs and assigns, To THE USE of the said C. D., E. F., and G. H., their heirs and assigns: PROVIDED ALWAYS, that Proviso for if the said A. B., his heirs, executors, administrators, or assigns, shall pay unto the said C. D., E. F., and G. H., or the survivors or survivor of them, or the executors or administrators of such survivor, their or his assigns, the sum of £[the principal sum], together with interest for the same in the meantime at the rate of £- per cent. per annum, on the said without any deduction or abatement whatsoever, then they the said C. D., E. F., and G. H., or the survivors or survivor of them, or the heirs of such survivor, their or his assigns, will, at any time

day of

next,

(a) Six calendar months from the date of the mortgage.