« ForrigeFortsett »
Trusts for sale.
request, costs, and charges of the said A. B., his heirs, executors, administrators, or assigns, reconvey and re-assure the said hereditaments and premises unto him or them, or as he or they shall direct or appoint, free from all incumbrances to be created by the said C. D., his executors, administrators, or assigns, in the meantime; but if default shall be made in payment of the said sum of L. and interest, or any part thereof respectively, at the time and in manner aforesaid, then upon trust that he, the said C. D., his heirs, executors, administrators, or assigns, shall and do, at any time thereafter, as he or they, in his or their discretion, shall think fit, without any further or other authority of the said A. B., his heirs, executors, administrators, or assigns, absolutely sell and dispose of the said messuages and other he. reditaments and premises hereby or intended so to be, or any part thereof, either together or in parcels, and either by public auction or private contract, to any person or persons whomsoever, under and subject to such conditions of sale, or other conditions, stipulations, or agreements, as he or they shall, in his or their uncontrolled discretion, think proper ; with full power to buy in the said premises, or any part thereof, at any such auction, and afterwards to sell the same in any of the ways aforesaid ; and shall and do, on such sale or sales, make and execute all such deeds, assignments, conveyances, and assurances, as shall be deemed requisite and necessary to complete the same; and also give and sign good and sufficient receipts and discharges for the
moneys to be received by such sale or sales to the purchaser or purchasers of the said premises, or any part thereof, who, paying such money, and taking such receipt or receipts for the same, shall not afterwards be obliged to see to the application, or be answerable or accountable for the misapplication or non-application of the same, or any part thereof; and upon further trust that the said C.D., his heirs, executors, administrators, or assigns, shall and do stand possessed of and interested in the moneys which shall arise by such sale or sales, In trust, in the
first place, to retain and pay himself and themselves thereout all such costs, charges, and expenses, as he or they shall or may bear, sustain, or be put unto, in or about the making and completing such sale or sales, or otherwise, in or about the execution of the trusts hereby in him or them reposed; and, in the next place, retain and satisfy to him and them the said sum of L. with all interest then due for the same, and all costs and expenses occasioned by the non-payment thereof; and shall and do pay the surplus (if any) of such moneys unto the said A. B., his heirs, executors, administrators, or assigns. [ Add covenants for payment, and for title, or, if brevity is an object, only the covenants for quiet enjoyment and for further assurance, p. 97.] In witness, &c.
TRANSFER? OF A MORTGAGE WHERE THE MORTGAGOR
CONCURS, AND A FURTHER SUM IS ADVANCED.
This indenture, made, &c., between [the mort. gagee] of the first part, [the mortgagor] of the second part, and [the assignee] of the third part. [Recite the mortgage.] And whereas the said principal sum of L. still remains due and owing upon the before in part recited securities, together with L. for arrears of interest thereon, [or] but all interest for the same hath been duly paid up to the day of
It is recommended in all cases of assignment of mort- When the gages, to make the mortgagor (if possible) a party; for, mortgagor although it is not absolutely necessary upon a simple transfer, where no further sum is advanced, yet it furnishes
party to an
assignment. evidence of the mortgage-money remaining due. No further sum advanced by the assignee will carry interest, nor can any part of the interest be made principal, without the mortgagor becoming a party. (4 Ves. 118, 126, 128; 1
should be a
In the mere transfer of a mortgage, where no further sur is advanced, the principal object is the assignment of the debt, which is a chose in action, and must be sued for in the assignor's name; therefore a power of attorney for that purpose must be inserted in such transfer. (See Matthews v. Walwyn, 1 Ves. 128; and ante, p. 286.)
the date hereof. And whereas the said [mortgagee] having called in, and required payment of the said sum of L.
and interest, the said [mortgagor] being unable to discharge the same out of his own moneys, hath requested the said [assignee] to advance and lend him the sum of L.
for such purpose, and to supply his other occasions, which he hath consented to do, upon having the repayment thereof secured to him, with interest for the same, in manner hereinafter mentioned : Now, this indenture witnesseth, that, in pursuance of the said recited agreement in this behalf, and in consideration of the sum of L..
of, &c., by the said [assignee] to the said [mortgagee,] at the request, and by the direction of the said [mortgagor,] testified by his being a party to and executing these presents, at or immediately before the execution of these presents, in hand well and truly paid, the receipt of which said sum the said [mortgagee] doth hereby acknowledge, and doth declare and admit the same to be in full for the absolute discharge of all principal, interest, and other moneys due and owing to him the said [mortgagee] on the hereinbefore in part recited securities ; and of and from the same sum, and every part thereof, doth acquit, release, and discharge the said [assignee,] and also the said [mortgagor,] and each of them, and each of their heirs, executors, administrators, and assigns, for ever by these presents : And also in consideration of the sum of L. residue of the said sum of L. by the said [assignee] to the said [mortgagor] in hand well and truly paid, the receipt of which said sum, and also the payment, in manner aforesaid, of the said sum of L. making together the said sum of L. said [mortgagor,] doth hereby acknowledge, and of and from the same sum, and every part thereof, doth acquit, release, and discharge the said sassignee,] his heirs, executors, administrators, and assigns, for ever by these presents ; he, the said (mortgagee,] at the request, and by the direction of the said (mortga. gor,] testified as aforesaid, hath, &c., and he, the
said [mortgagor,] hath, &c. [After conveying the property, add the covenants, provisoes, and powers applicable to primary mortgages, with a covenant by the mortgagee, that he has done no act to incumber.'] In witness, &c.
ASSIGNMENT OF A MORTGAGE WHERE THE MORT
GAGOR IS NOT A PARTY.
sum of L.
This indenture, made, &c., between, &c. [Recite the mortgage deed.] And whereas the said principal
is now due and owing to the said (mortgagee,] upon the before in part recited security, together with the sum of L. for arrears of interest thereon. And whereas the said [assignee] hath, at the request of the said [mortgagee,] agreed to pay off and discharge to him, the said [mortgagee,] the said sum of L.
so due and owing to him, upon the
This form is preferable for its simplicity, but it is thought by some persons that if it is used, an ad valorem duty must be paid on the whole sum; and that to save that duty upon the sum already charged, the mortgagee must assign the debt, &c., as in an assignment where the mortgagor does not join ; and the covenant of the mortgagor be confined to the further sum, as in the case of a further charge, which will be the character of the transaction between the mortgagor and assignee; but some writers contend, that even if both sums are amalgamated and secured by covenants, powers, and trusts applicable to the united sums, an ad valorem duty would only be payable on the additional sum secured ; and the editor concurs in this opinion. See Coventry on Stamps, and post. p. 667.
• If the mortgagor joins, add, “as he, the said [mortgagor,] doth hereby acknowledge;" and where he does not join, immediate notice of the assignment should be given to him, as any payments made by him to the original mortgagee, without notice of the assignment, would be valid ; Norrish v. Marshall, 5 Mad. 475; Williams v. Sorrel, 4 Ves, 389.
hereinbefore in part recited securities, and to take an assignment and transfer of the said debt or sum of
and the securities for the same, in manner hereinafter mentioned. Now, this indenture witness. eth,' that, in consideration, &c., he, the said (mortgagee,] hath bargained, sold, and assigned, and, &c., unto the said [assignee,] his executors, administrators, and assigns, all that the said sum of L. so secured to the said [mortgagee] by the said in part recited indenture of as hereinbefore mentioned, together with the said sum of L.
so due and owing for interest thereon, and all interest henceforth to become due for the same; and all the right, title, interest, property, claim, and demand whatsoever, both at law and in equity, of him, the said [mortgagee,] in, to, or out of the principal and interest moneys and premises hereby assigned, or intended so to be, (together with full power and authority, in the name or names of the said [mortgagee,] his executors, or administrators, but at the proper costs and charges of the said [assignee,] his executors, admi. nistrators, or assigns, to commence, institute, and prosecute all such actions, suits, and other proceedings, whether at law, in equity, or otherwise, as may be necessary for the recovery, compelling payment, and receiving the said principal and interest moneys intended to be hereby assigned, or any part or parts thereof respectively; and to give, sign, and execute effectual releases, acquittances, and discharges for the same.] To have, hold, receive, and take the said principal and interest moneys, and all and singular other the premises hereby assigned, or intended so to be, and every part thereof, unto the said [assignee,] his executors, administrators, and assigns, for his and their own absolute use and benefit. [Where a power of attorney is adopted, as is usual on large transactions, insert it here, and then omit
See note to p. 439.