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give directions respecting the time, place, terms, and made of production or delivery, and may make sach order as it thinks fit respecting the costs of the application, or any other matter connected with the application.
(8.) An acknowledgment shall by virtue of this Act satisfy any liability to give a covenant for production and delivery of copies of or extracts from documents.
(9.) Where a person retains possession of documents and gives to another an undertaking in writing for safe custody thereof, that undertaking shall impose on the person giving it, and on every person having possession or control of the documents from time to time, but on each individual possessor or person as long only as he has possession or control thereof, an obligation to keep the documents safe, whole, uncancelled, and undefaced, unless prevented from so doing by fire or other inevitable accident.
(10.) Any person claiming to be entitled to the benefit of such an undertaking may apply to the Court to assess damages for any loss, destruction of, or injury to the docuincuts or any of them, and the Court may, if it thinks fit, direct an inquiry respecting the amount of damages, and order payment thereof by the person liable, and may make such order as it thinks fit respecting the costs of the application, or any other matter connected with the application.
(11.) An undertaking for safe onstody of documents shall by virtue of this Act satisfy any liability to give a covenant for safe custody of documents.
(12.) Tbe rights conferred by an acknowledgment or an undertaking under this section shall be in addition to all such other right* relative to tbe production, or inspection, or the obtaining of copies of documents as are not, by virtue of this Act, satisfied by the giving of the acknowledgment or undertaking, and shall have effect subject to the terms of the acknowledgment or undertaking, and to any provisions therein contained.
(13.) This section applies only if and as far as s contrary intention is not expressed in tbe acknowledgment or nndertaking.
(14) This ssction applies only to an acknowledgment or undertaking given, or a liability respecting documents incurred, after the commencement of this Aot.
10. Rent and bencJU of lessees covenants to run with reversion.] (1.) Kent reserved by a lease, and the benefit of every covenant or provision therein contained, having reference to the subject-matter thereof, and on tbe lessees part to be observed or performed, and every oondition of re-entry and other oondition therein contained, shall be annexed and inoident to and shall go with the reversionary estate in the land, or in any part thereof, immediately expeotant on the term granted by the lease, notwithstanding severance of that reversionary estate, and shall be capable of being recovered, received, enforced, and taken advantage of by the person from time to time entitled, subject to the term, to the income of the whole or any part, as the oase may require, of the land leased.
(2.) This section applies only to leases made after the commencement of this Aot.
11. Obligation of lessors covenants to run with reversion.'] (1.) The obligation of a covenant entered into by a lessor with reference to the subjeot-matter of the lease shall, if and as far as the lessor has power to bind the reversionary estate immediately expeotant on the term granted by the lease, be annexed and inoident to and shall go with that reversionary estate, or the several parts thereof, notwithstanding severance of that reversionary estate, and may be taken advantage of and enforced by the person in whom the term is from time to time vested by conveyance, devolution in law, or otherwise; and, if and as far as the lessor has power to bind the person from time to time entitled to that reversionary estate, the obligation aforesaid may be taken advantage of and enforced against any person so entitled.
(2.) This section applies only to leases made after the commencement of this Aot.
12. Apportionment of conditions on severance, $c] (1.) Notwithstanding the severanoe by conveyance, surrender, or otherwise, of the reversionary estate in any land comprised in a lease, and notwithstanding the avoidance or cesser in any other manner of the term granted by
lease as to part only of the land comprised therein, every oondition or right of re-entry, and every other oondition, contained in the lease, shall be apportioned, and shall remain annexed to tbe severed parts of the reversionary estate as severed, and shall be in force with respect to tbe term whereon each severed part is reversionary, or tbe term in any land which has not been surrendered, or as to wbioh the term has not been avoided or has not otherwise oeased, in like manner as if tbe land comprised in eaoh severed part, or the land as to which the term remains subsisting, as the oase may be, had alone originally been comprised in tbe lease.
(S.) This section applies only to leases made after tbe commencement of this Act.
13. On sub-demise, title to leasehold reversion not to be required.] (1.) On a contract to grant a lease for a term of years to be derived out of a leasehold interest, with a leasehold reversion, the intended lessee ah dl not hive the right to call for the title to that reversion.
(2.) This section applies only if and as far as a contrary intention is not expressed in the contract, and shall have effect subject to the terms of the contract and to the provisions therein contained.
(3.) This section applies only to contracts made after the commencement of this Act.
14. Sestrictimn on and reltef against forfeiture of leases.] (1.) A right of re-entry or lorfeiture under any proviso or stipulation in a lease, for a breach of any covenant or condition in the lease, shall not be enforceable by action or otherwise, unless and until the lessor serves on tbe lessee a notice specifying the particular breach complained of and, if the breach is capable of remedy, requiring the lessee to remedy the brescb, and, in any case, requiring the lessee to make compensation in money for the breach, and the lessee fails within a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of tbe lessor, for the breach.
(2.) Where a lessor is proceeding, by action or otherwise, to enforce such a right ot re-entry or forfeiture, the lessee may, in the lessor's action, if any, or in any action brought by himself, apply to the Court for relief; and the Court may grant or refuse relief, as the Court, having regard to the proceedings and conduct of the parties under the foregoing provisions of ttiis section, and to all tbe other circumstances, thinks fit ; and in case of relief may grant it on snch terms, if any, as to costs, expenses, damages, compensation, p-naltys or otherwise, including the granting of an injuootion to restrain any like breach in tbe future, as the Court, in the circumstances of each case, thinks fit.
■(■'!.) For tbe purposes of this section a lease inoludes an original or derivative under-lease, also a grant at a fee farm rent, or securing a rent by condition; and a lessee includes an original or derivative under-lessee, and the heirs, executors, administrators, and assigns of a lessee, also a grantee under such a grant as aforesaid, his heirs and assigns ; and a lessor includes an original or derivative under-lessor, and the heirs, executors, administrators, and assigns of a lessor, also a grantor as aforesaid, and his heirs and assigns.
(4.) This section applies although the proviso or stipulation under which the right of re-entry or forfeiture accrues is inserted in the lease in pursuance of the directions of any Act of Parliament.
(5.) For the purposes of this section a lease limited to continue as long only as the lessee abstains from committing a breach of covenant shall be and take effect as a lease to continue for any longer term for which it could Bubsist, but determinable by a proviso for re-entry on such a breach.
(6.) This section does not extend—
(i.) To a covenant or condition against the assigning, under-letting, partiog with the possession, or disposing of the land leased; or to a condition for forfeiture on the bankruptcy of the lessee, or oa the taking in execution of the lessee's interest; or
(ii.) In case of a mining lease, to a covenant or oondition for allowing the lessor to have access to or inspect books, accounts, records, weighing machines or other things, or to enter or inspect the mine or the workings
(7.) The en net merits described in Part I. of the Second Schedule to thia Act are hereby repealed.
(8.) This section shall not affect the law relating to re-entry or forfeiture or relief in case of non-payment of rent.
(9.) This section app'iee to leases made either before or after the cimrnencement of this Act, aod shall have effect notwithstanding any stipulation to the contrary.
IV.—Mobto AO ES.
15. —Obligation on mortgagee to transfer instead of re-conHying.] (1.) Where a mortgagor is entitled to redeem, lie thai], by virtue of this Act, have power to require the mortgagee, instead of re-conveying, and on the terms on which be would be bemud to re-convey, to assign the mortgage dobt and convey the mortgaged property to any third person, as the mortgagor directs; and the mortgagee shall, by virtue of tbii Act, be hound to assign and convey accordingly.
(2.) This section does not apply in the case of a mortgagee being or having been in possession.
(3.) This section applies to mortgages made either before or after the commencement of this Act, and (hall have effect notwithstanding any stipulation to the contrary.
16. Power for mortgagor to inspect title deeds '] (1.) A mortgagor, as long as hi- right to redeem subsists, shall, by virtue of this Act, be entitled from time to time, at reasonable times, on bis request, and at his own cost, and on payment of the mortgagee's costs aid expenses in this behalf, to inspect and make copies or abstracts of or extracts from the documents of title relating to mortgaged property in the custody or power of the mortgagee.
(2.) This section applies only to mortgages made after the commencement of this Act, and shall have effect notwithstanding any stipulation to the contrary.
17. Restriction on anutolidatioii of mortgages.'] (1.) A mortgagor seeking to redeem any one mortgage, shall, by virtue of this Act, be entitled to do so, without paying any money due under any separate mortgage made by him, or by any person through whom be claims, on property other than that oompiised in the mortgage which he seeks to redeem.
(2.) This section applies only if and as far as a contrary intention is not expressed in the mortgage deeds or one of them.
(3.) This section applies only where the mortgages or one of them are or is made after the commencement of this Act.
18. Leasing powers of mortgagor and of mortgagee in possession.] (1.) A mortgagor of land while in possession shall, as against every incumbrancer, have, by virtue of this Act, power to make from time to time any such lease of the mortgaged land, or any part thereof, as is in this section described and authorised.
(2.) A mortgagee of land while in possession shall, as against all prior incumbrancers, if any, and as against the mortgagor, have, by virtue of this Act, power to make from time to time any such lease as aforesaid.
!•>-) The leases which this section authorises are— i.) An agricultural or occupation lease for any term not
exceeding twenty-one years ; and (ii.) A building lease for any term not exceeding ninetynine years.
(4.) Every person making a lease under this section may execute and do all assurances and things necessary or proper in that behalf.
(5.) Every such lease shall be made to take effect in possession not later than twelve months after its date.
(6.) Every such leaae shall reserve the best rent that can reasonably be obtained, regard being had to the circumstances of the case, but without any fine being taken.
(7.) Every such lease shall contain a covenant by the lestee for payment of the rent, and a condition of re-entry on the rent not being paid within a time therein specified not exceeding thirty days.
(8.) A counterpart of every such lease shall be executed by the leasee ana delivered to the lessor, of which execution and delivery the execution of the lease by the lessor •hall, in favour of the lessee and all persons deriving title under bim, be sufficient evidence.
(9.) Every such building lease shall be made in consideration of the lessee, or some person by whose direction
the lease i9 granted, having erected, or agreeing to erect within not more than five years from the date of the lease, buildings, new or additional, or having improved or repaired buildings, or agreeing to improve or repair buildings vnthia that lime, or having executed, or agreeing to execute within that time, on the land leased, an improvement for or in connexion with building purposes.
(10.) In any sach building lease a peppaicorn rent, or a nominal or other rent less than the rent ultimately ptyable. may be made payable for the first five years, or any lass part of the term.
(11.) In case of a lease by the mortgagor, he shall, within one month after making the lease, deliver to tat mortgagee, or, where there are more than one, to tie mortgagee first in priority, a counterpart of the lease duly executed by the lessee; bnt the lessee shall not be concerned to see that this provision is complied with.
(12.) A contract to make or accept a lease under this section may be enforced by or against every person on whoa the lea>e if granted would be binding.
(13.) This section spplies only if and as far as a contrary intention is not expressed by the mortgagor and mortgagee in the mortgage deed, or otherwise in writing, and shall have effect subject to the terms of the mortgage deed or of any such writing and to the provisions therein contained.
(14) Nothing in this Act shall prevent the mortgage deed from reserving to or conferring on the mortgagor or mortgagee, or both, any further or other powers of leasing or having reterence to leasing; and any further or other powers so reserved or conferred Bhall be exercisable, as far as may be, as if they were conferred by thia Act. and with all the like incidents, effects, and consequences, unless a contrary intention is expressed in the mortgage deed.
(15.) Nothing in this Act shall be construed to enable s mortgagor or mortgagee to make a lease for any longer term or on any other conditions than such as could have beta granted or imposed by the mortgagor, with the concurrents of all the incumbrancers, if this Act had not been paswd.
(16.) This section applies only in case of a mortgage made after the commencement of this Act; bat the provisions thereof, or any of them, may, by agreement in writing made after the commencement of this Act, between mortgagor and mortgagee, be applied to a mortgage made before the cootmencement of this Act, so nevertheless that any such agreement shall not prejudieally affect any right or interest of say moitgagee not joining in or adopting tbo agreement.
(17.) The provisions of this section referring to a lease shall be construed to extend and apply, as far as circumataocsa admit, to any letting, and to an agreement, whether ia writing or not, for leasing or letting.
Sale; Insurants; Receiver; Tistber. 19. Powers incident to estate or interest of mortgagee.~\ (L) A mortgagee, where the mortgage is made by deed, shall, by virtue ol this Act, have the following powers to the lika extent as if they had been in terms conferred by the mortgage deed, but not further (namely):
(i.) A power, when tbe mortgage money has become doe, to sell, or to concur with any other person in selling, tbe mortgaged property, or any part thereof, either subject to prior charges, or not, and either together or in lots, by public auotion orby private contract, subject to snob, conditions respecting title, or evidence of title, or other matter, as hs (the mortgagee) thinks fit, with power to vary any contract for sale, and to bay in at an auction, or to rescind any contract for sale, and to re-sell, without being answerable for any lots occasioned thereby; and (ii) A power, at any time after tbe date of tbe mortgage deed, to insure and keep insured against loot or damage by fire any building, or any effects or property of an insurable nature, whether affixed to the freehold or not, being or forming part of the mortgaged property, and the premiums paid for any such insurance shall be a charge on the mortgagee property, io addition to the mortgage money, and with the same priority, and with interest at tbe Msm rats, as the mortgage money; and (iii.) A power, when the mortgage money has become do;, to appoint a receiver of tbe income of the mortgjreo property, or of any part thereof; and (ir.) A power, while tbe mortgagee is in possession, to eat and eell timber and other trees ripe for cutting, and not planted or left standing for shelter or ornament, or to contract for any such cutting and sale, to be completed within any time not exceeding twelve months from the making of the contract.
(2.) The provisions of this Aot relating to the foregoing powers, comprised either in this section, or in any subsequent section regulating the exercise of those powers, may be varied or extended by the mortgage deed, and, as so varied or extended, shall, as far as may be, operate in the like manner and with all the like incidents, effect?, and consequences, as if such variations or extensions were contained in this Act.
(3.) This section applies only if and as far as a contrary intention is not expressed in the mortgage deed, and shall Dave effect Bobjeot to the terms of the mortgage deed and to the provisions therein contained.
(4.) This section applies only where the mortgage deed is executed after the commencement of this Act.
20. Regulation of exereite of power of sale.'] A mortgagee ••hall not exercse the power of sale conlerred by this Act unless and until—
(i.) Notice requiring payment or the mortgage money has been served on the mortgagor, or one of several mortgagors, and default has been made in payment of the mortgage money, or of part thereof, for three months after such service ; or
(ii.) Some interest nnder the mortgage is in arrear and unpaid for two months after becoming due ; or
(iii.) There has been a breadi of some provision contained in the mortgage deed or in this Act, and on the part of the mortgagor, or of some person concurring in making the mortgage, to be observed or performed, other than and besides a oovenant for payment of the mortgage money or interest thereon.
21. Conveyance, receipt, <fcc, on sale.'] (1.) A mortgagee exercising the power of sale conferred by this Act shall have power, by deed, to convey the property sold, for such estate and interest therein as is the subject of the mortgage, freed from all estates, interests, and rights to which the mortgage bas priority, but subject to all estates, interests, and rights whioh have priority to the mortgage ; except that, in the case of copyhold or customary land, the legal right to admittance shall not pass by a deed under this section, unless the deed is sufficient otherwise by law, or is sufficient by custom, in that behalf.
(2.) Where a conveyance is made in professed exercise of the power of sale conferred by this Act, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorise the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised ; but any person damnified by an unauthorised, or improper, or irregular exercise of the power shall have his remedy in damages against the person exercising the power.
(3.) The money which is received by the mortgagee, arising from the sale, after discharge of prior incumbrances to whioh the sale is not made subject, if any, or alter payment into Court under this Act of a sum to meet any prior incumbrance, shall be held by bina in trust to be applied by him, first, in payment of all costs, charge', and expenses, properly incurred by him, as incident to the sale or any attempted sale, or otherwise ; and secondly, in discharge of the mortgage money, interest, and costs, and other money, if any, due under the mortgage; and the residue of the money so received shall be paid to the person entitled to the mortgaged property, or authorised to givo receipts for the proceeds of the sale thereof.
(4.) The power of sale conferred by this Act may be exercised by any person for the time being entitled to receive and give a discharge for the mortgage money.
(5.) The power of sale conferred by this Act shall not affect the right of foreclosure.
(6.) The mortgagee, his executors, administrators, or assigns, shall not be answerable for any involuntary loss happening in or about the exercise or execution of the power of sale conferred by this Act or of any trust connected therewith.
(7.) At any time after the power of sale conferred by this Act has become exerciseable, the person entitled to exercis, the same may demand and recover fiom any person, other than a person having in the mortgaged property an estate,
interest, or right in priority to the mortgage, all the deeds and documents relating to the property, or to the title thereto , whioh a purchaser under the power of sale would be entitled to demand and recover from him.
22. Mortgagee1 s receipts, discharges, cjc] (1.) The receipt in writing of a mortgagee shall be a sufficient discharge for any money arising under the power of sale conferred by this Act, or for any money or securities comprised in hie mortgage, or arising thereunder; and a person paying or transferring the same to the mortgagee shall not be concerned to inquire whether any money remains due under the mortgage.
(2.) Honey received by a mortgagee nnder his mortgage or from the proceeds of securities comprised in his mortgage shall be applied in like manner as in this Act directed respecting money received by him arising from a sale under the power of sale conferred by this Act; but with this variation, that the costs, charges, and expenses payable shall include the costs, charges, and expenses properly incurred of recovering and receiving the money or securities, and ot conversion of securities into money, instead of those incident to sale.
23. Amount and application of insurance money."] (1.) The amount of an insuranoe effected by a mortgagee against loss or damage by firs under the power in that behalf conferred by this Act shall not exceed the amount specified in the mortgage deed, or, if no amount is therein specified, then shall not exceed two third parts of the amount that would be required, in oase of total destruction, to restore the property insured.
(2.) An insuranoe shall not, under the power conferred by this Aot, ba effected by a mortgagee in any of the following cases (namely):
(i.) Where there is a declaration in the mortgage deed that
no insurance is required: (ii.) Where an insurance is kept up by or on behalf of the mortgagor in accordance with the mortgage deed:
(iii.) Where the mortgage deed contains no stipulation respecting insursnce, and an insuranoe is kept up by or on behalf of the mortgagor to the amount in which the mortgagee is by this Act authorised to insure.
(3.) All money received on an insurance effected under the mortgage deed or under this Act sliall, if the mortgagee so requires, be applied by the mortgagor in making good the 1"SS or damage in respect of which the money is received.
(4.) Without prejudice to any obligation to the contrary imposed by law, or by special contract, a mortgagee may require that all money received on an insurance be applied in or towards discharge of the money due under his mortgage.
24. Appointment, powers, remuneration, and duties of receiver.] (1.) A mortgagee entitled to appoint a receiver under the power in that behalf conferred by this Aot shall not appoint a receiver until he has become eatitled to exercise the power of sale conferred by this Act, but may then, by writing under his hand, appoint such person as he thinks fit to be receiver.
(2.) The receiver shall be deemed to be the agent of the mortgagor ; and the mortgagor shall be solely responsible for the receiver's acts or defaults, unless the mortgage deed otherwise provides.
(3.) The receiver shall have power to demand and recover all the income of the property of which he is appointed receiver, by action, distress, or otherwise, in the name either of the mortgagor or of the mortgagee, to the full extent of the estate or interest which the mortgagor could dispose of, and to give effectual receipts, accordingly, for the same.
(4.) A person paying money to the receiver shall not be ooncerned to inquire whether any case has happened to authorise the receiver to act.
(5.) The receiver may be removed, and a new receiver may be appointed, from time to time by the mortgagee by writing under his hand.
(6.) The receiver shall be entitled to retain out of any money received by him, for his remuneration, and in satisfaction of all costs, charges, and expenses incurred by him as receiver, a commission at such rate, not exceeding five per centum on the gross amount of all nionsy received, as is specified in his appointment, and if no rate is so speoified, then at the rate of five per centum on that gross amount, or at such higher rnte as the court thinks fit to allow, on application made by bim for that purpose.
(7.) The receiver shall, if so directed in writing by the mortgagee, inaure and keep insured against loss or damage by fire, out of the money received by him, any building, effects, or property comprised in the mortgage, whether affixed to the freehold or not, being of an insurable nature.
(8.) The receiver shall apply all money received by him as follows (namely): (i.) In discbarge of all rents, taxes, rates, and outgoings
whatever affecting the mortgaged property ; and (ii.) In keeping down all annual sums or other payment;, and the interest on all principal sums, having priority to the mortgage in right whereof he is reoeiver; and
(iii.) In payment of his commission, and of the premiums on fire, life, or other insurances, if any, properly p ayable under the mortgage deed or under this Act, and the coat of executing necessary or proper repairs directed in writing by the mortgagee; and (iv.) In payment of the interest accruing due in respect of any principal money due nnder the mortgage; and shall pay the residue o( the money reoeived by him to tbe person who, but for the possession of the reooiver, would have been entitled to receive the income of the mortgaged property, or who is otherwise entitled to that property.
Action respecting Mortgage.
25. Sale of mortgaged property in action for foreclosure, Sr.—15 & 16 Viet. o. 86, i. 48.] (1.) Any person entitled to redeem mortgaged property may have a judgment or order for sale instead of for redemption in an action brought by him either for redemption alone, or for sale alone, or for sale or redemption, in the alternative.
(2.) In any notion, whether for foreclosure, or for redemption, or for sale, or for the raising and payment in any manner of mortgage money, the Court, on the request of the mortgagee, or of any person interested either in the mortgage money or in the right of redemption, and, notwithstanding the dissent of any other person, and notwithstanding that tbe mortgagee or any person so interested does not appear in the action, and without allowing any time for redemption or for payment of any mortgage money, may, if it thinks fit, direct a sale of tbe mortgaged property, on suoh terms as it thinks fit, including, il it thinks fit, the deposit in Court of a reasonable sum fixed by the Court, to meet the expenses of sale and to secure performance of tbe terms.
(3.) But, in an action brought by a person interested in the right of redemption and seeking a sale, the Court may, ou tbe application of any defendant, direot tbe plaintiff to give snch security for oosts as the Court thinks fit, and may give tbe conduct of the Bale to any defendant, and may give suoh directions as it thinks fit respeoting the oosta of tbe defendants or any of them.
(4.) In any case within this section the Coort may, if it thinks fit, direot a sale witbont previously determining the priorities of incumbrancers.
(5.) This section applies to actions brought either before or after tbe commencement of this Act.
(•}.) The enactment described in Fart II. of the Second Schedule to this Act is hereby repealed.
(7.1 This seotion does not extend to Ireland.
26. Form ofstatutory vwrtgage in schtdule.~\ (1.) Amortgage of freehold or leasehold land may be made by a deed expressed to be made by way of statutory mortgage, being in the form given in Fart I. of tbe Third Schedule to tbis Act, with such variations and additions, if any, as oiroomstanceB may require, and the provisions of this section shall apply thereto.
(2.) There sbxll he deemed to be included, and there shall by virtue ol tbis Act be implied, in the mortgage deed—
First, a covenant with the mortgagee by the teison expressed therein to convey sa mortgagor to the effect following (namely):
That the mortgagor w ill, on the stated day, pay to tbe mortgagee tbe slated mortgage money, with interest thereon in the mtantime, at tbe stated rate, and will thereafter, if and aa long as the mortgage money or any part thereof
remains unpaid, pay to tbe mortgages interest thereon, or cn the unpaid part thereof, at the stated rate, by equal half-yearly payments, the first thereof to be made at the end of six calendar months from Ibe day stated for payment of the mortgage money: Secondly, n proviso to the effect following (namely): That if the mortgager, ou the stated day, pays to lie mortgagee the stated mortgage money, with inteiest thereon in the meantime, at the stated rate, the mortgagee at any time thereafter, at the request and cost of the mortgagor, shall re-convey the mortgaged property to the mortgagor, or as he shall direct.
2 7. Forms of statutory transfer of mortgage in schedule."] (1.) A Iransfer of a statutory mortgage may be made by a deed expressed to be made by way of statutory transfer of mortgage, being in such one of the three forms (A.) and (B.) and (C.) given in Part II. of the Third Sohedule to this Act as may be appropriate to the case, with such variations and additions, if any, as circumstances may require, and the provisions of this section shall apply thereto.
(2.) In whichever of those three forms the deed of transfer is made, it shall have effect as follows (namely):
(i.) There shall become vested in the person to whom the benefit of the mortgage is expressed to be transferred, who, with his executors, administrators, and assigns, is hereafter in this section designated the transferee, the right to demand, sue for, recover, and give receipts for the mortgage money, or the unpaid part thereof, and the interest then due, if any, and thenceforth to become due thereon, and the benefit of all securities for tbe same, and the benefit of and tbe right to sue on all covenants with the mortgagee, and the right to exercise all powers of the mortgagee:
(ii.) All the estate and interest, subject to redemption, of the mortgagee in the mortgaged land shall vest in tbe transferee, subject to redemption.
(3.) If the deed of transfer is made in the form (B.), there shall also be deemed to be included, and there shall by virtue of this Act be implied therein, a covenant with the transferee by tbe person expressed to join therein as covenantor to the effect following (namely):
That the covenantor will, on the next of the days by the mortgage deed fixed for payment of interest, pay to tbe transferee the stated mortgage money, or so much thereof as then remains unpaid, with interest thereon, or on the unpaid part thereof, in the meantime, at the rata stated in the mortgage deed; and will thereafter, as long aa tbe mortgage money, or any part thereof, remains unpaid, pay to the transferee interest on that sum, or the unpaid part thereof, at tbe same rate, on tbe successive days by the mortgage deed fixed for payment of interes:. (4.) If the deed of transler is made in the form (C), it shall, by virtue of this Act, operate not only as a statutory transfer of mortgage, but also as a statutory mortgage, and the provisions of this section shall have effect in relation thereto, accordingly; but it shall not be liable to any increased stamp duty by reason only of it being designated a mortgage.
28. Implied covenants, joint and several.] In a deed of statutory mortgage, or of statutory transfer of mortgage, where more persons than one are expressed to convey as mortgagors, or to join aa covenantors, tbe implied covenant on their part shall be deemed to be a joint and several covenant by them ; and where there are more mortgagees or more transferees than one, the implied covenant with them shall bo deemed to be a covenant with them jointly, on less the amount secured is expressed to be secured to them in shares or distinct sums, in which latter case the implied covenant with them shall be deemed to be a covenant with each severally in respect of the share or distinct so m secured to bim.
29. Form of re-conveyance of statutory mortgage in schedule."] A re-conveyance of a statutory mortgage may be made by a deed expressed to be made by way of statutory re-conveyance of mortgage, being in the form given in Part III. of the Third Schedule to this Act, with such variations and additions, if any, as oiroumstanoea may require.
VI.—Trust And Mortgage Estatxs Osj Drath.
30. Devolution of trust on mortgage estates on death—37 & 88 Vict. c. 78—38 4 39 Viet. e. 87.] (1.) Where au estate or interest of inheritance, or limited to tbe heir as special occupant, in any tenements or hereditament?, corporeal or incorporeal, is rested on any trust, or by way of mortgage, in aoy person solely, the same shall, on his death, notwithstanding any testamentary disposition, devolve to and become vested in his personal representatives or representative from time to time, in like manner as if the same were a chattel real vesting in them or him; and accordingly all the like powers, for one only of several joint personal representatives, as well as for a single personal representative, and for all the personal representatives together, to dispose of and otherwise deal with the same, shall belong to the deoeased's personal representatives or representative from time to time, with all the like incidents, bnt subject to all the like rights, equities, and obligations, as if the same were a chattel real vesting in them or him; and, for the purposes of this section, the personal representatives, for the time being, of the deceased, shall be deemed in law his heirs and assigns, within the meaning of all trusts and powers.
(2.) Section fonr of the Vendor and Purchaser Aot, 1874, and section forty-eight of the Land Transfer Act, 1875, are hereby repealed.
(3.) This seotion, including the repeals therein, applies only in oases of death after the commencement of this Aot.
VII.—Trustees And Executors.
SI. Appointment of new trustees, vesting of trust property, ■Ac] (1.) Where a trustee, either original or substituted, and whether appointed by a Court or otherwise, is dead, or remains out of the United Kingdom for more than twelve months, or desires to be discharged from the trusts or powers reposed in or conferred on him, or refuses or is unfit to aot therein, or is incapable of acting therein, then the person or persons nominated for this purpose by the instrument, if any, creating the trust, or if there is no such person, or no such person able and willing to aot, then the surviving or continuing trustees or trustee for the time being, or the personal representatives of the last surviving or continuing trustee, may, by writing, appoint another person or other persons to be a trustee or trustees in the plaoe of the trustee dead, remaining out of the United Kingdom, desiring to be discharged, refusing or being unlit, or being incapable, as aforesaid.
(2.) On an appointment of a new trustee, the number of trustees may be increased.
(3.) On an appointment of a new trustee, it shall not be obligatory to appoint more than one new trustee, where only one trustee was originally appointed, or to fill up the original .number of trustees, where more than two trustees were originally appointed; but, except where only one trustee was originally appointed, a trustee shall not be discharged nnder this section from his trust unless there will be at least two trustees to perform the trust.
(4.) On an appointment of a new trustee any assuranoe or thing requisite for vesting the trust property, or any part thereof, jointly in the persons who are the trustees, shall be exeouted or done.
(5.) Every new trustee so appointed, as well before as after all the trnst property becomes by law, or by assuranoe, or otherwise, vested in him, shall have the same powers, authorities, and discretions, and may in all respeots act, as if he had been originally appointed a trustee by the instrument, if any, oreating the trust.
(6.) The provision^ of this seotion relative to a trustee who is dead include the oase of a person nominated trustee in a will but dying before the testator; and those relative to a continuing trustee include a refusing or retiring trustee, if willing to act in the execution of the provisions of this Beotion,
(7.) This seotion applies only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trnst, and shall have effect subjeot to the terms of that instrument and to any provisions therein contained.
(8.) This Beotion applies to trusts created either before or after the commencement of this Act.
32. Retirement of trustee.'] (1.) Where there are more than two trustees, if one of them by deed declares that he is desirous of being discharged from the trust, and if his co-trustees and suoh other person, if any, as is empowered to appoint trustees, by deed consent to the discharge of the trustee, and to the vesting in the co-truatees alone of
the trnst property, then the trustee desirous of being discharged shall be deemed to have retired from the trnst, and shall, by deed, be discharged therefrom nnder this Act, without any new trustee being appointed in his. place.
(2.) Any assuranoe or thing requisite for vesting the trust property in the continuing trustees alone shall be executed or done.
(3.) This seotion applies only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust, and shall have effect subjeot to the terms of that instrument and to any provisions therein contained.
(4.) This seotion applies to trusts oreated either before or after the commencement of this Aot.
33. Powers of new trustee appointed by courts] (1.) Every trustee appointed by the Court of Chanoery, or by the Chancery Division of the Court, or by any other court of competent jurisdiction, shall, as well before as after the trust property beoomes by law, or by assuranoe, or otherwise, vested in him, have the same powers, authorities, and discretions, and may in all respeots act as if he had been originally appointed a trustee by the instrument, if any, creating the trnst.
(2.) This section applies to appointments made either before or after the commencement of this Act.
34. Vesting of trust property in new or continuing trustees.] (I.) Where a deed by which a new trustee is appointed to perform any trust contains a declaration by the appointor to the effect that any estate or interest in any land subject to the trust, or in any chattel so subject, or the right to recover and receive any debt or other thing in action so subject, shall vest in the persons who by virtue of the deed become and are the trustees for performing the trust, that declaration shall, without any conveyance or assignment, operate to vest in those persons, as joint tenants, and for the purposes of the trust, that estate, interest, or right.
(2.) Where a deed by which a retiring trustee is discharged under this Act contains such a declaration as is in this section mentioned by the retiring and continuing trustees, and by the other person, if any, empowered to appoint trustees, that declaration shall, without any conveyance or assignment, operate to vest in the continuing trustees alone, as joint tenants, and for the purposes of the trust, the estate, interest, or right to which the declaration relates.
(3.) This section does not extend to any legal estate or interest in copyhold or customary land, or to land conveyed by way of mortgage for securing money subject to the trust, or to any such share, stock, annuity, or property as is only transferable in books kept by a company or other body, or in manner prescribed by or under Act of Parliament.
(4.) For purposes of registration of the deed in any registry, the person or persons making the declaration shall be deemed the conveying party or parties, and the conveyance shall be deemed to be made by him or them under a power conferred by this Act.
(5.) This section applies only to deeds executed after the commencement of this Act.
35. Power for trustees for sale to sell by auction, *c,] (1.) Where a trust for sale or a power oi sale of property is vested in trustees, they may sell or concur with any other person in selling all or any part of tbe property, either subjeot to prior charges or not, and either together or in lots, by publio auction or by private contract, subject to any such conditions respecting title or evidence of title, or other matter, as the trustees think fit, with power to vary any contract for sale, and to buy in at any auction, or to rescind any contract for sale, and to re-sell, without being answerable for any loss.
(2.) This section applies only if and as far as a contrary intention is not expressed in the instrument creating the trust or power, and shall have effect subject to the terms of that instrument and to the provisions therein oontained.
(3.) This section applies only to a trust or power created by an instrument coming into operation after the commencement of this Act.
36. Trustees receipts.] (1.) Tbe receipt in writing of any trustees or trustee for any money, securities, or other personal property or effects payable, transferable, or deliverable to them or him under any trustor power shall be a sufficient discharge for the same, and shall effectually exonerate the person paying, transferring, or delivering the same from