« AnteriorContinuar »
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 mort. gage-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.b
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 hiın by the assignee; for,
. Williams v. Sorrell, 4 Ves. 389. • The points here referred to have been previously con. sidered 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 mortgagor, 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 dext 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 bim; but where the mortgage was originally made to, or subsequently becomes vested in several persons, an acknowledge 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 ;e 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 mortgage
mortgagor joins, the premises are conveyed to the where the inortgagor
new mortgagee, with a fresh proviso for redemption, and the old mortgagee covenants that he has done no act to incumber, and the mortgagor covenants 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 See when the mortgagor is with a power of attorney, and then the premises are bot a party. conveyed by the mortgagee to the assignee, sub
ject to such right and equity of redemption as the
• Ante, 437, n.
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
demise. due thereon should be set forth, also the agreement dem 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 mort
.verted into a gagor 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.
e 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 con
the mortgagor that the premises shall stand and be a security as well for the last sum advanced and interest as for the former loan, and that the mortgagee shall stand seised of the premises " in trust, out of the rents and profits of the hereditaments to raise such sums of money as will pay off as well the sum last advanced and interest as the former sum and interest, and subject thereto, to the (mortgagor in fee.") If an attendant term has been assigned in the mortgage, the further charge should contain a declaration that the trustee shall stand possessed of the term, in trust for securing as well the sum last ad. vanced as the sum before lent, with interest on them both.
It may be useful to notice, for the guidance of trustees having money to invest, that, in a recent case, Stickney v. Sewell, 1 M. and Cr. 8, the present Lord Chancellor, when Master of the Rolls, stated, that to advance two-thirds of the value of property is admitted to be within the rule of ordinary prudence, but, added the learned judge, that is with reference to property of a permanent value, as freehold land. The same rule does not apply to property in houses, which fluctuates in value, and is always deteriorating.
Loans by trustees.
I, J. M., of, &c., notary-public, by royal authority Certificate of duly admitted and sworn, do hereby certify and at the due exe
ecution of a test unto all whom it may concern, that the letter of
letter of attorattorney hereunto annexed was duly signed and ney. sealed by A. B., therein named, in my presence, and in the presence of C. D., of, &c., and E. F., of, &c. Whereof an act being requested, I have granted the same under my notarial firm and seal of office, to serve and avail as occasion shall or may require. Done and passed at, &c., aforesaid, this day of, &c., in the year of our Lord 18 ..
On this day of, &c., before me, J. M., notary- Certificate of public, by, &c., personally came and appeared A. B., the identity
of a person. of, &c., and C. D., of, &c., who severally declared, of that they these appearers have for many years known and been well acquainted with E. F., son of G. H., late of, &c., but now of, &c.; and that these appearers verily believe the said E. F. to be the residuary heir named in the will of 1. K., of, &c., aforesaid, deceased. · And I do hereby certify, that the signature of the said E. F., written and subscribed hereunder, is of the true and proper handwriting of