Page images
PDF
EPUB

money.

whom the legal estate is vested, and also to every person interested in any prior incumbrance.

If the mortgage-money is not repaid at the time Repayment of mentioned in the proviso for redemption, the mort- mortgagegagee is entitled to six calendar months' notice of the mortgagor's intention of repaying it," and he cannot be compelled to receive it at any

time before the expiration of that period, unless (as by having taken any steps to obtain payment) he has precluded himself from objecting to the want of notice; but though it has been sometimes thought that a mortgagor is entitled to six months' notice of the mortgagee's intention to call in the money, it is apprehended that whenever the point is submitted to judicial decision, it will be found to be without foundation."

As the mortgagee is entitled to six months' notice of intention to pay off the mortgage-money, to afford him time to obtain another security on which to invest bis money, in order that he may not be a loser by its being unproductive, he is sometimes induced to take it in on a less notice, or without any notice, upon being paid interest for such period in advance as there was deficiency in the notice. The propriety of accepting such interest has been much questioned, and it has been suggested, that such a transaction would be usurious. The editor does not feel this ob. jection in the force with which it is urged by some writers on the subject, but cannot, in the absence of authority, venture to say that it is unfounded; but however this may be, there can be no doubt that, the money

should be invested at any time before the expiration of the period for which interest has been paid, it would be the duty of the mortgagee to return all interest paid to him for the time subsequent to the day of investment.

As the mortgagee, if he should insist on his strict rights, will be entitled to a fresh notice if the money be not paid on the day mentioned in the notice,

Sharpnell v. Blake, 2 Eq. Ca. Ab. 603 ; Gyles v. Hall, 2 P. W. 378; Garforth v. Bradley, 2 Vez. 678.

* Coote on Mortgages, 553.

ance.

the mortgagor should tender it to him on the very day; and if the mortgagee were then to refuse it, he would not be entitled to any subsequent interest, unless his refusal was justified by the mortgagor hav. ing accompanied the tender with some improper requisitions, as for the execution of a reconveyance which the mortgagee had no opportunity of previously

perusing,' or which contained unusual provisions. Reconvey. The propriety of obtaining a reconveyance of

the premises on the mortgage being paid off, cannot be too strongly insisted upon. The expense occasioned on a subsequent sale of the property, by neglecting to do so, is often so considerable, that, independent of the inconvenience of leaving the legal estate outstanding, it ought to prevent persons from allowing the desire of saving a small and present expense to lead them to incur the risk of a greater expense at

some future time. (See Poole v. Pass, 1 Beav. 600.) Entering into If the interest is not regularly paid, a mortgagee receipt of

should give notice to the tenants to pay their rent to rents.

him, after which he would be entitled to receive as well the rent then due, but not paid, as that which may become due after the notice, and any payment by the tenant to the mortgagor, after such notice, will not deprive the mortgagee of his right to recover it from such tenant.

If the mortgagor, upon a bill of foreclosure being filed against him, is desirous of retaining the property, and paying off the mortgage-money, he should not

go to the expense of putting in an answer; but (if he is willing to admit the title of plaintiff) he may at once move for the usual decree of reference to the master to take an account of the amount due, under which he may obtain the same indulgences as to time, which he might have obtained under a decree made

upon the hearing of the cause, the loss of time between such hearing and the motion being well com. pensated by the saving of expense.

I cannot find any case upon the point, but I fear that by the terms of the act of Parliament,' which

Wilshaw v. Smith, 9 Mod. 441. 3 7 Geo. II. c. 20.

Foreclosure.

now directs the procedure in these cases, infant mortgagors are debarred from the privilege of disposing of a foreclosure suit in this manner, for the second section of that act authorizes the court to make an order on such notion, only on the terms of the defendant's admitting the plaintiff's title, an act which in all ordinary cases an infant is considered incapable of doing.

Under the same act, an action at law on the mortgage-covenants may be terminated without going to trial.

Upon an assignment of a mortgage, the concur- Assignment. rence of the mortgagor should be obtained, or if this cannot be done, inquiry should be made from him as to the amount due on the mortgage, and notice of the transfer, when completed, should also be given to him, for if the mortgagor had paid any part of the mortgage debt before the assigninent, or even afterwards, whilst such assignment was unknown to him, he would be entitled to the benefit of such payment, even as against an assignee, who might, in ignorance of those payments, have dealt with the mortgagee on the footing of the whole amount secured by the mortgage-deed being still due; the concurrence of the mortgagor in the assignment, or a declaration, (which, if possible, should be in writing,) as to the actual amount due, should, therefore, always be obtained as the only effectual security against those dangers which are always attendant upon the transfer of choses in action of almost every description.

The concurrence of the mortgagor in assignments of a mortgage is also of great importance where an arrear of interest or costs are due to the mortgagee, and intended to be paid to hin by the assignee; for,

a Williams v. Sorrell, 4 Ves. 389. • The points here referred to have been previously considered in the Observations on Assignments of Choses in Action, and the Purchase of Equities of Redemption, and ante, 441, n.

without the mortgagor's consent, the assignee will not be entitled to charge interest on the sums paid.* If the mortgagor should concur for the purpose of giving interest on such sums, it will be considered in the light of a further advance, and a proportionate ad valorem stamp accordingly payable.“

The murtgagor, or his assignees or representatives, are entitled to redeem the premises on payment of principal, interest, and costs, and such expenses as the mortgagee may have incurred in the protection and preservation of the property, at any time within twenty years next after the mortgagee entered into possession or receipt of the rents of the property, or from the time at which a written acknowledgment of the mortgagor's title was given to the owner, or one of the owners, of the equity of redemption by the mortgagee or person claiming under him; but where the mortgage was originally made to, or subsequently becomes vested in several persons, an acknowledg. ment by one of such persons will only preserve the right of redemption in the share of the premises to which such person was entitled ;d but after the expiration of the period of 20 years, no bill for redemp

tion will be entertained. Assignment of On the transfer of a mortgage in fee, where the a mortgage

mortgagor joins, the premises are conveyed to the inortgagor

new mortgagee, with a fresh proviso for redemption, joins. and the old mortgagee covenants that he has done

no act to incumber, and the mortgagor eovenants for

the title, as in the original mortgage. Assignment of

Where the mortgagor is not a party to the assigna mortgage in

ment, the principal and interest due is first assigned inortgagor is with a power of attorney, and then the premises are not a party. conveyed by the inortgagee to the assignee, sub

ject to such right and equity of redemption as the premises are liable to under the original mortgage; with covenants that the mortgagee has not received,

Ante, 437, n. • See post. Stamps. • 3d and 4th William IV. c. 27, sec, 28; ante, 173.

where the

fee when the

demise.

released, or assigned the mortgage-money or interest, that he has done no act to incumber the premises, and for further assurance.

On the transfer of a mortgage by demise, the Transfer of a original security should be recited, and the amount mortgage by due thereon should be set forth, also the agreement by the new mortgagee to lend the sum required by the mortgagor to pay off the old mortgagee. The premises are then assigned by the words “bargain, sell, assign, transfer, and set over” to the new mortgagee, his executors, &c. ; to hold for the residue of the term, subject to a proviso that, upon payment of the principal and interest on a given day, the new mortgagee will surrender the term to the mortgagor, his heirs or assigns, or that he will assign the same to such person or persons as he or they shall direct or appoint.

If the new mortgagee requires that the mortgage where the shall be converted into a mortgage in fee, the inden- mortgage by ture for such purpose will be made between the mortgagor of the first part, the mortgagee of the terın of mortgage in the second part, and the intended mortgagee of the fee. third part. After reciting the mortgage by demise, that the money remains due, that payment has been required, and that the new mortgagee has agreed to lend the sum of L. to enable the mortgagor to pay off the original sum, and to supply his other occasions, the mortgagor grants, bargains, sells, and releases ; and the mortgagee, for the purpose of surrendering the term, will assign, surrender, and yield up, unto the new mortgagee, his heirs and assigns, with the usual proviso for redemption, as in a mortgage in fee; the old mortgagee must covenant that he has done no act to incumber; and the mortgagor will enter into covenants as in other mortgages in fee.

Upon the advance of a further sum, the further Further charge should contain a covenant and declaration by charge.

• If it is intended to keep the term on foot, the fee may be conveyed by the mortgagor to the assignee, the first mortgagee assigning the term to a trustee. Ante, p. 441.

demise is converted into a

[ocr errors]
« PreviousContinue »