mortgage for 350/., and three stamps of 17., making together 71. or that, in addition to 27. and 17. 15s. actually paid, there should have been three sums of 17. 5s., making together 77. 10s.

The Court held that as a further sum was added, the transfer duty under the 3 Geo. IV. was out of the question; the words of the statute being "provided no further sum of money be added." But the effect of the other part of the clause was to make the deed an original mortgage for 200/., for which a duty of 21. was payable under the 55 Geo. III., with progressive stamps of 17. each, being the stamps actually on the deed.

As to the argument that it was an original mortgage for 3501., by reason of the conveyance in fee, the Court held, that the case did not fall within the exemption of the third section of the 3 Geo. IV., which applies only to cases where the duty on bonds has been already paid, but that the question turned on the exemption clause of the 55 Geo. III., in respect of deeds executed by way of further security, charging the ad valorem duty on any further sum added; and that as the deed was not a mere further assurance, but also an assignment of the original mortgage, it would not, prior to the 3 Geo. IV., have been within the exemptions of the 55 Geo. III., but would have required the full duty of 41. The 3 Geo. IV. had, however, repealed the transfer duties of the 55 Geo. III., and substituted the same ad valorem duty of 21. on the transfer in respect of the additional sum, as the exemption clause

C C

had already charged on the new security in respect of the additional sum, and as the ad valorem duty depended on the sum secured, and not on the number of the securities, and was only to be paid once, it followed that the case was the same in effect as if the ad valorem duty of 27. had been charged on the transfer, and afterwards the fee had been conveyed as a further security for the whole 350., in which case a common deed stamp only would have been required. Whether a common deed stamp was necessary, the Court did not think it material to inquire, as the 17. 15s. stamp erroneously put on the deed was sufficient to cover that stamp, if requisite.

From this case the conclusion may be drawn, that on a transfer of mortgage with a further advance, the ad valorem duty is payable only on the additional sum, with followers of 17., on each skin, even although other estates are added, provided the mortgagor is the same party who created the original security, subject to the doubt thrown out by the Court of King's Bench, whether, in such last mentioned case, the common deed stamp may not be also requisite.

In the last session of parliament a bill was introduced for the consolidation and amendment of the stamp laws; by which it was proposed to enact, that on any transfer or assignment, disposition or assignation of any mortgage, wadset or bond, or of any such other security as aforesaid, or of the benefit thereof, and of the money or stock thereby secured, if no further sum of money or stock shall be added

to the principal money or stock already secured, then where the amount of the principal money or the value of the stock secured by such mortgage, wadset, or bond shall not exceed 300l., the same duty shall be paid as on a mortgage, wadset, or bond for such principal money or stock. And where the same shall exceed 300l. then 1. 15s. in Great Britain, and 17. in Ireland. And if any further sum of money or stock shall be added to the principal money or stock already secured, then the same duty as on a mortgage, wadset, or bond for such further sum of money or stock only. It is probable this will be passed into a law in the next session.

BOOK THE THIRD.

CHAPTER I.

OF THE RELATIVE ESTATES OF MORTGAGOR AND
MORTGAGEE.

HAVING treated of the origin, nature, and different modes of mortgage, it is next to be considered in what respective relative situations the mortgagor and mortgagee, until redemption or foreclosure, stand to each other; and to what privileges and restrictions they are, during that period, respectively entitled or subject.

On the execution of the mortgage, the mortgagor becomes the equitable owner, the mortgagee the legal owner of the land; in which respective situations they remain until the land is redeemed or foreclosed. In the interim, the land and all its profits form a security for the debt. These general principles govern the decisions on this branch of the law of mortgage.

In most mortgage deeds, a proviso is inserted that until default made in payment by the mortgagor, &c., he and his heir may hold and enjoy the land and

receive the profits without interruption by the mortgagee or his heir. In some instances, however, the mortgage is made without such precaution.

There is some obscurity in the books in what light the mortgagor, during the period of actual possession, or receipt of the rents of the land, stands in respect to the mortgagee. The result of the cases however appears, that he may be considered as tenant for a term, or at will, or by sufferance, or a trespasser, according to circumstances.

The Court of King's Bench has decided that the mere receipt of interest from the mortgagor is not a recognition by the mortgagee, that the mortgagor or his tenant was at that time in lawful possession (a), and it therefore was no defence to an ejectment in which the demise was laid on the first day of July, 1830, although it was proved that on the 15th day of January, 1831, the mortgagee had admitted payment of interest up to the 25th of December, 1830, being subsequent to the demise.

But this must be distinguished from the case of rent eo nomine, demanded and received by the agent of the mortgagee from the tenant of the mortgagor in payment of interest, which would prevent the tenant being treated as a trespasser (b).

In the case of Doe v. Maisey (c) Lord Tenterden

(a) Doe v. Cadwallader, 2 Barnewall & Ad. 473.

(b) Doe v. Hales, 7 Bingh. 322.

(c) 8 Barnewall & Cresswell, 767; 3 Manning & Ryland, 109.