that he hath not incumbered; and for further assurance, see pp. 89 and 100.] In witness, &c.* Parties. Recital. Covenant MORTGAGE BY A TENANT IN TAIL, WITH THE CON- This indenture, made, &c., between A. B., of, &c., (eldest son and heir of the body of C. B., of, &c., Esq.,) of the first part; the said C. D., of, &c., [the protector,] of the second part; and [the mortgagee,] of, &c., of the third part. Whereas, [Recite the instrument creating the entail; and recite the contract for the in default of payment of the before-mentioned sum of L. ; i This covenant may begin thus: "And also that he, the against incum- said [mortgagor,] hath not parted with, or otherwise disbrances. posed of, his equity of redemption, or right to redeem the The form of a further charge. premises comprised in the said recited indenture of mortgage, nor at any time heretofore since the execution of the same indenture, made, done, &c., any act," &c., to incumber. The mortgagee having the estate already vested in him, no further conveyance is necessary, it being only requisite to recite the security; and then, after stating that the money remains due, and acknowledging the receipt of the further sum advanced, the mortgagor should covenant that the mortgaged premises shall be a security as well for the sum already secured as for the further advance; and add a declaration by him that the premises shall not be redeemed or redeemable until the two several sums are paid; with a covenant for payment of the further sum, and with covenants that the mortgagor hath done no act (since the execution of the mortgage) to incumber; and to further assure the premises. (See p. 100.) 'If the mortgagor be tenant in tail in possession, recite the deed, or will, creating the estate tail, the contract for the loan, and omit the recital as to the protector's consent. protector's consent. loan.] "[And whereas the said C. D., in order to enable Recital of the said A. B. to make an effectual security for the said sum of, &c., and interest, as against all persons claiming in remainder or reversion expectant on the estate tail of the said A. B., of and in the lands and hereditaments hereinafter described, and intended to be hereby granted and released, hath agreed to join in these presents, for the purpose of testifying his consent to the conveyance, and disposition intended to be hereby made.] Now, this indenture wit- Testatum. nesseth, that, in pursuance and performance of the said recited agreement, and in consideration of the sum of, &c., the receipt, &c., he, the said A. B., [with the consent and approbation of the said C. B., as such protector as aforesaid, testified by his being a party to, and executing these presents,] hath granted, bargained, sold," disposed of, and confirmed, and by these presents intended to be forthwith enrolled in her Majesty's High Court of Chancery, doth, &c., unto the said [mortgagee,] and his heirs, all that the remainder of him, the said A. B., expectant on the decease of the said C. B., of and in all, &c., together with all houses, &c., and the reversion, &c., and all the estate, &c., to have and to hold the said remainder lands, &c., subject [and without prejudice] The testatum will be as in the above precedent, varied to suit an estate in possession, with the usual proviso and covenants. m If the consent of the protector has been obtained by a separate instrument, recite such deed; and omit the above recital, and the other parts within brackets. (For the definition of the protector, see 3 and 4 Will. IV., c. 74, s. 22, ante; and for his powers, s. 34 of the same act; and see Observations on the Protectorate, post. p. 591.) "The conveyance by way of mortgage is taken by bargain and sale, as the deed must be enrolled, and therefore the expense of the lease for the year is saved. [The enrolment must be in Chancery within six calendar months after its execution, 3 and 4 Will. IV., c. 74, s. 41: see ante, p. 365 and 158.] to the rights of the said C. D., to exercise all or any of the powers and authorities now vested in him, in respect of his said estate for life, of and in the hereinbefore mentioned hereditaments and premises, or otherwise howsoever, unio and to the use of the said [mortgagee,] his heirs and assigns for ever, freed and absolutely discharged from the estate tail of the said A. B., and all other estates tail, remainders, reversions, limitations, and conditions, thereupon expectant or depending; but subject, nevertheless, to the proviso or agreement for redemption of the said remainder hereditaments and premises hereinafter contained; (that is to say,) [Add proviso for redemption, p. 72; covenant for payment, p. 97; powers of sale, p. 55; covenants for title, p. 98; and proviso for enjoyment till default, p. 72.] In wit ness, &c. MORTGAGE BY TRUSTEES OF A TERM, WITH THE CONCURRENCE OF THE TENANT FOR LIFE. This indenture, made, &c., between, &c., [trustees,] of the first part, C. D., [tenant for life,] of the second part, and E. F., [mortgagee,] of the third part, [Recite the settlement or will, and the contract for loan, p.26.] And whereas the said C. D. hath, for further securing the repayment of the said sum of L. and interest, consented to concur in these presents, for the purpose and in manner hereafter mentioned. Now, this indenture witnesseth, that, in consideration, &c. [State the receipt of the mortgage-money by the • In order to avoid any question as to the right to the equity of redemption, and to supersede the necessity of enrolling the mortgage-deed, the tenant in tail may execute the necessary assurance for barring the entail, and limiting the estates required, by a deed to be executed and enrolled according to the act; and then execute the mortgage-deed ¡n the usual way. Habendum. trustees, and a nominal consideration by C. D.] They, the said [trustees,] at the request, and with the privity and approbation of the said C. D., testified, &c., have, and each of them hath bargained, sold, assigned, transferred, and set over, and, &c., and the said C. D. hath granted, bargained, sold, assigned, and confirmed, and, &c., unto the said E. F., his executors, administrators, and assigns, all, &c., (see p. 40.) Habendum unto the said [mortgagee,] his executors, Premises. administrators, and assigns, from henceforth, for and during all the rest and remainder now to come and unexpired of the said term of five hundred years therein, without impeachment of waste; yielding and paying therefore yearly, and every year during the said term, the rent of a peppercorn, (if demanded.) Provided always, &c., that if the said C. D., his Proviso for heirs, executors, administrators, or assigns, or any other person or persons who shall or may be seised of or entitled to the said hereditaments and premises, contained in the said in part recited indenture of settlement, or any of them, do and shall well and truly pay, &c., [as in p. 72,] then and from thenceforth this present indenture, and the grant, demise, and assignment hereby made, and every clause and sentence herein contained, shall cease, determine, and be absolutely void, any thing, &c., to the contrary, &c. [Add a covenant from the trustees that Covenant. they have done no act to incumber, p. 89; and covenants by the tenant for life for payment, p. 97, and for title, p. 100; and proviso for enjoyment till default, p. 72.] In witness, &c. redemption. MORTGAGE BY THE EXERCISE OF A POWER OF This indenture, made, &c., between [the mortga- Parties. gor] of the one part, and [mortgagee] of the other part. Recite the deed creating the power, (setting forth the words of the power fully,) and the agree Testatum. Covenants that the power was well created, and is now in force. ment for the loan, p. 26.] Now, this indenture witnesseth, that, &c., [here add the appointment, which will be similar to appointments in an absolute conveyance, see p. 356;'] subject nevertheless to the proviso for the redemption of the said hereditaments hereinafter contained; (that is to say,) [Add a proviso for redemption, as in p. 72; covenant for payment, p. 97; and common mortgage-covenants, as in p. 98; or after the following concise form :] And the said A. B., for himself, his heirs, executors, and administrators, doth hereby covenant, promise, and agree to and with the said [mortgagee,] his heirs and assigns, in manner following; (that is to say,) that the said power of appointment given or reserved to him, the said [mortgagor,] by the said recited indenture of release, of, &c., was well and effectually created; and that the same is now in full force, and in no wise suspended, extinguished, And hath full or impeached. And that he, the said [mortgagor,] hath full power to limit and appoint the said hereditaments and premises to the use of the said [mortgagee,] his heirs and assigns, [and if in trust for sale, say, 66 upon the trusts and in manner aforesaid;"] and it shall and may be lawful for the said [mortgagee,] his heirs or assigns, at all times after default shall have been made by the said [mortgagor,] his heirs, executors, administrators, or assigns, in power to limit and appoint. And to enter in default of payment, &c. If the deed creating the power is recited, and the power fully set forth in such recital, it will be sufficient to state in the operative part, that the mortgagor "doth by these presents direct, limit, and appoint," if such are the words of the power; but if the deed and power be not so recited, the power must be referred to, as in p. 356. 66 Here may be added, And that by the exercise hereby made of the said power, the said hereditaments and premises mentioned, and intended to be hereby limited and appointed, will be well and effectually conveyed and assured to the use of the said [mortgagee,] his heirs and assigns, subject to the proviso hereinbefore contained for redemption of the said hereditaments and premises." |