Page images
PDF
EPUB

' Journal

1881.

conveyance, pay, observe, and perform, or cause to be nterest is, for the whole or any part thereof, from time to paid, observed, and performed all the rents reserved by, time vested. and all the covenants, conditions, and agreements con. (7.) A covenant implied as aforesaid may be varied or tained in, the lease or grant, and on the part of the extended by deed, and, as so varied or extended, shall, lessee or grantee and the persons deriving title under as far as may be, operate in the like manger, and with him to be paid, observed, and performed, and will keep all the like incidents, effects, and consequences, as if such the person to whom the conveyance is made, and those variations or extensions were directed in this section to be deriving title under him, indempified against all actions, implied. proceedings, costs, charges, damages, claims and de. (8.) This section applies only to conveyances made after maods, if any, to be incurred or sustained by him or the commencement of this Act. them by reason of the non-payment of such rent or the non-observance or pon-performance of such covenants,

Execution of Purchase Deed. conditions, and agreements, or any of them : (E.) In a conveyance by way of settlement, the following

8. Rights of purchaser as to execution.] (1.) On a sile, the covenant by a person who conveys and is expressed to convey

purchaser shall not be entitled to require that the conveyance as settlor (namely):

to him be executed in his presence, or in that of his That the person so conveying, and every person deriving

solicitor, as such ; but shall be entitled to have, at his own title under him by deed or act or operation of law in his

cost, the execution of the conveyanoe atteste i by some perlifetime subsequent to that conveyance, or by testa

son appointed by him, who may, if he thinks fit, be his

solicitor. mentary disposition or devolution in law, on his death, will, from time to time, and at all times, after the date

(2.) This section applies only to sales made after the comof that conveyance, at the request and cost of any per

mencement of this Act. son deriving title thereunder, execute and do ali such lawful assurances and things for further or more per

Production and Safe Custody of Title Deeds. fectly assuring the subject-matter of the conveyance to 9. Acknowledgment of right to production, and undertak. the persons to whom the conveyance is made and ing for safe custody of documents.) (1.) Where & person those deriviog title under them, subject as, if so ex retaios possession of documents, and gives to another an pressed, and in the manner in which tbe conveyance is acknowledgment in writing of the right of that other to proexpressed to be made, as by them or any of them shall duction of those documents, and to delivery of copies there. be reasonably required :

of (in this section called an auknowledgment), that acknor. (F.) In any conveyance, the following covenant by every ledgment shall have effect as in this section provided. person who conveys and is expressed to convey as trustee or (2.) An acknowledgment shall bind the documents to mortgagee, or as personal representative of a deceased per- which it relates in the possession or under the control of the 800, or as committee of a lunatic so found by inquisition, person who retains them, and in the possession or under the or under an order of the Court, which covenant shall be control of every other person having possession or control deemed to extend to every such person's own acts only thereof from time to time, but shall bind each individual (namely):

possessor or person as long only as he has possession or conThat the person so conveying has not executed or done, | trol thereof; and every person so having possession or con

or knowingly suffered, or been party or privy to, any trol from time to time shall be bound specifically to perform deed or thing, whereby or by means whereof the sub- the obligations imposed under this section by an ackaowledg. ject-matter of the conveyance, or any part thereof, is or ment, unless prevented from so doing by fire or other io. may be impeached, charged, affected, or incumbered in evitable accident, title, estate, or otherwise, or whereby or by any means (3.) The obligations imposed under this section by an wbereof the person who 80 conveys is in anywise acknowledgment are to be performed from time to time at hindered from conveying the subject-matter of the con. the request in writing of the person to whom an acknowledg. veyance, or any part thereof, in the manner in which ment is given, or of any person, not being a lessee at a rent, it is expressed to be conveyed.

having or claiming any estate, interest, or right through or (2.) Where in a conveyance it is expressed that by direc. under that person, or otherwise becoming through or under tion of a person expressed to direct as beneficial owner that person interested in or affected by the terms of any another person conveye, then, within this section, the per document to which the acknowledgment relates. son giving the direction, whether he conveys and is expressed (4.) The obligations imposed under this section by an to convey as beneficial owner or not, shall be deemed to acknowledgment areconvey and to be expressed to convey as beneficial owner (i.) An obligation to produce the documents or any of the subject matter so conveyed by his direction; and a

them at all reasonable times for the purpose of in. covenant on his part shall be implied accordingly.

spection, and of compurison with abstracts or copies (3.) Where a wife conveys and is expressed to convey as

thereof, by the person entitled to request probeneficial owner, and the husband also conveys and is ex

duction or by any one by him authorised in writing i pressed to convey as beneficial owner, then, within this

and section, the wife shall be deemed to convey and to be (ii.) An obligation to produce the documents or any of expressed to convey by direction of the husband, as bene

them at any trial, hearing, or examination in any ficial owner; and in addition to the covenant implied on

court, or in the execution of any commission, or elsethe part of the wife, there shall also be implied, first, a where in the United Kingdom, on any oocasion on covenant on the part of the husband as the person giving that which production may properly be required, for direction, and secondly, a covenant on tbe part of the hus

proving or supporting the title or claim of the person band in the same terms as the covenant implied on the part of entitled to request production, or for any other purpose the wife.

relative to that title or claim; and (4.) Where in a conveyance & person conveying is not ex. (iii.) An obligation to deliver to the person entitled pressed to convey as beneficial owner, or as settlor, or as

to request the same true copies or extracts, attested trustee, or as mortgagee, or as personal representative of a de

or unattested, of or from the documents or aoy of ceased person, or as committee of a lunatic so found by inqui

them. sition, or under an order of the Court, or by direction of a (5.) All costs and expenses of or incidental to the specific person as beneficial owner, no covenant on the part of the per performance of any obligation imposed under this section by son conveying shall be, by virtue of this section, implied in an acknowledgment shall be paid by the person requesting the conveyance.

performance. (5.) In this section a conveyance includes a deed con. (6.) An acknowledgment shall not confer any right to ferring the right to admittance to copybold or customary damages for loss or destruction of, or injury to, the docaland, but does not include a demise by way of lease ments to which it relates, from whatever onuse arising at a rent, or any customary assurance, other than a deed, (7.) Any person claiming to be entitled to the benefit of conferring the right to admittance to copyhold or customary an acknowledgent may apply to the Court for an order land.

directing the production of the documents to which it relates, (6.) The benefit of a covenant implied as aforesaid sball or any of them, or the delivery of copies of or extracts from be annexed and incident to, and shall go with, the estate or those documents or any of them to him, or some person on interest of the implied covenantee, and shall be capable his bebalf; and the Court may, if it thinks fit, order proof being enforced by every person in whom that estate or duction, or production and delivery, accordingly, and may give direotions respecting the time, place, terms, and mode lease as to part only of the land comprised therein, every of production or delivery, and may make such order as it condition or right of re-entry, and every other condition, thinks fit respecting the costs of the application, or any other contained in the lease, shall be apportioned, and shall matter connected with the application.

remain annexed to the severed parts of the roversionary (8.) An ackoowledgment shall by virtue of this Act satisfy estate as severed, and shall be in force with respect to the any liability to give a covenant for production and delivery term whereon each severed part is reversionary, or the of copies of or extracts from documents.

term in any land which bas not been surrendered, or as to (9.) Where a person retains possession of documents and which the term has not been avoided or has not otherwise gives to another an undertaking in writing for safe custody ceased, in like manner as if the land oomprised in each thereof, that undertaking shall impose on the person giving severed part, or the land as to which the term remains it, and on every person having possession or control of the subsisting, as the case may be, had alone originally been documents from time to time, but on each individual possessor | comprised in the lease. or person as long only as he has possession or control thereof, (2.) This section applies only to leases made after the an obligation to keep the documents safe, whole, uncancelled,

commencement of this Act. and undefaced, unless prevented from so doing by fire or other

13. On sub-demise, title to leasehold reversion not to be re. inevitable accident. (10.) Ady person claiming to be entitled to the benefit of

quired.) (1.) On a contract to grant a lease for a term of

years to be derived out of a leasehold interest, with a leasesuch an undertaking may apply to the Court to assess

hold reversion, the intended lessee shall not have the right damages for any loss, destruction of, or injury to the docu.

to call for the title to that reversion. . ments or any of them, and the Court may, if it thinks fit,

(2.) This section applies only if and as far as & contrary direct an inquiry respecting the amount of damages, and order payment thereof by the person liable, and may make

intention is not expressed in the contract, and shall have such order as it thinks fit respecting the costs of the appli.

effect subject to the terms of the contract and to the pro

visions therein contained. cation, or any other matter connected with the application.

(3.) This section applies only to contracts made after the (11.) An undertaking for safe castody of documents shall | by virtue of this Act satisfy any liability to give a covenant

commencement of this Act. for safe custody of documents.

Forfeiture. (12.) The rights conferred by an acknowledgment or an undertaking under this section shall be in addition to all

14. Restrictims on and relief against forfeiture of leases.] such other rights relative to the production, or inspection, or

(1.) A right of re-entry or forfeiture under any provieo or the obtaining of copies of documents as are not, by virtue of

stipulation in a lease, for a breach of any covenant or conthis Act, satisfied by the giving of the acknowledgment or

dition in the lease, shall not be enforceable by action or undertaking, and shall have effect subject to the terms of the

otherwise, unless and until the lessor serves on the lesgee & acknowledgment or undertaking, and to any provisions therein

notice specifying the particular breach complained of and, contained.

if the breach is capable of remedy, requiring the lessee to (13.) This section applies only if and as far as a

remedy the breach, and, in any case, requiring the lessee to

make compensation in money for the breach, and the lessee contrary intention is not expressed in the acknowledgment

fails within a reasonable time thereafter, to remedy the or undertaking. (14.) This section applios only to an acknowledgment or

breach, if it is capable of remedy, and to make reasonable

compensation in money, to the satisfaction of the lessor, for undertaking given, or a liability respecting documents in

the breach. curred, after the commencement of this Act.

(2.) Wbere a lessor is proceeding, by action or otberwise,

to enforce sach a right of re-entry or forfeitare, the lessee III.-LEABES.

may, in the lessor's action, if any, or in any action brought 10. Rent and benefit of lessees covenants to run with rever.

run with several by himself, apply to the Court for relief; and the Court may sion.] (1.) Rent reserved by a lease, and the benefit of

| grant or refuse relief, as the Court, having regard to the every covejant or provision therein contained, having

| proceedings and conduct of the parties under the forogoing reference to the subject-matter thereof, and on the lessees

provisions of this section, and to all the other circumstances, part to be observed or performed, and every condition

thinks fit; and in case of relief may grant it on sach terms, of re-entry and other condition therein contained,

if any, as to costs, expeoses, damages, com peosation, p-paltys shall be aodoxed and incident to and shall go with the

or otherwise, including the granting of an injunction to rereversionary estate in the land, or in any part thereof, im

strain any like breach in the future, as the Court, in the cirmediately expectant on the term granted by the lease,

cumstances of each case, thinks fit. notwithstanding severance of that reversionary estate, and

(3.) For the purposes of this section a lease includes an shall be capable of being recovered, received, enforced, and

original or derivative under-lease, also a grant at a fee farm takon advantage of by the person from time to time

rent, or securing a rent by condition, and a lessee includes

an original or derivative under-lessee, and the heirs, executors, entitled, subjeot to the term, to the income of the whole

administrators, and assigos of a lessee, also a grantee under or any part, as the case may require, of the land leased. (2.) This seotion applies only to leases made after the

such a grant as aforesaid, his heirs and assigns; and a lessor

includes an original or derivative under-lessor, and the heirs, commencement of this Act.

executors, administrators, and assigns of a lessor, also & 11. Obligation of lessors covenants to run with reversion.] grantor as aforesaid, and his lieirs and assigns. (1.) The obligation of a covenant entered into by a lengor

(4.) This section applies alchough the proviso or stipulawith reference to the subject-matter of the lease shall,

tion under which the rigbt of re-entry or forfeiture accrues if and as far as the lessor has power to bind the rever.

is inserted in the lease in pursuance of the directions of any sionary estate immediately expectant on the term granted

Act of Parliament. by the lease, be annexed and inoident to and shall go

(5.) For the purposes of this section a lease limited to with that reversionary estate, or the several parts thereof,

continue as long only as the lessee abstains from commit. potwithstanding severance of that reversionary estate, and

tiog a breach of covenant shall be and take effect as a may be taken advantage of and enforced by the person

lease to continue for any longer term for which it could in whom the term is from time to time vested by convey.

subsist, but determinable by a proviso for re-entry on such ance, devolation in law, or otherwise ; and, if and as far as

a breach. the lessor has power to bind the person from time to

(6.) This section does not extendtime entitled to that reversionary estate, the obligation

(i.) To a covenant or condition against the assigning, aforesaid may be taken advantage of and enforced against

under-letting, parting with the possession, or disany person so entitled,

posing of the land leased; or to a condition for (2.) This section applies only to leases made after the

forfeiture on the bankruptcy of the lessee, or on

the taking in execution of the lessee's interest ; commencement of this Act.

12. Apportionment of conditions on severance, fc.) (1.)) (ii.) In case of a mining lease, to a covenant or condition Notwithstanding the severance by conveyance, sorrender, for allowing the lessor to have access to or inspect or otherwise, of the reversionary estate in any land books, accounts, records, weighing machines or other oomprised in a lease, and notwithstanding the avoidance

things, or to enter or inspect the mine or the workings or cosøer in any other manner of the term granted by a

thereof.

or

' Journal

1831

(7.) The enactments described in Part I. of the Second the sease is granted, having erected, or agreeing to erect Schedule to this Act are hereby repealed.

within oot more than five years from the date of the lease, (8.) This section sball not affect the law relating to buildings, new or additional, or having improved or repaired re-entry or forfeiture or relief in case of non-payment buildings, or agreeing to improve or repair buildings within of rent.

that time, or having executed, or agreeing to execute (9.) This section applies to leases made either before or within that time, on the land leased, an improvement for after the commencement of this Act, and shall have effect or in connexion with building porposes. notwithstanding any stipulation to the contrary.

(10.) In any such building lease & peppei corn reat, or

& nominal or otber rent less than the rent ultimately payable, IV.-MORTGAGES.

may be made payable for the first five years, or any lass part 15.-Obligation on mortgagee to transfer instead of re-con

of the term. veying.] (1.) Where a mortgagor is entitled to redeem,

(11.) In case of a lease by the mortgagor, he shall, ho shall, by virtue of this Act, have power to require the

within one month after making the lease, deliver to the mortgagee, instead of re-conveying, and on the terms on

mortgagee, or, where tbere are more than one, to the which he would be bound to re-convey, to assign the mort.

mortgagee first in priority, a counterpart of the lease daly gage debt and convey the mortgaged property to any third

executed by the lessee ; but the lessee shall not be conperson, as the mortgagor direcis; and the mortgagee shall,

cerned to see that this provision is complied with. by virtue of this Act, be bound to assign and convey ac

(12.) A contraot to make or accept a lease under this cordingly.

section may be enforced by or against every person on bom (2.) This section does not apply in the case of a mortgages the lease if granted would be binding. being or having been in possession.

(13.) This section applies only if aod as far as a con(3.) This section applies to mortgages made either before trary intention is not expressed by the mortgagor and or after the commencement of this Act, and shall have effect mortgagee in the mortgage deed, or otherwise in writing, notwithstanding any stipulation to the contrary.

and sball have effect subject to the terms of the mortgage 16. Power for mortgagor to inspect title deeds. ] (1.) A mort.

deed or of any such writing and to the provisions therein

contained. gagor, as long as his right to redeem subsists, shall,' by virtue

(14) Nothing in this Act shall prevent the mortgage of this Act, be entitled from time to time, at reasonable times, on bis request, and at his own cost, and on payment of

deed from reserving to or conserring on the mortgagor or mortthe mortgagee's costs and expenses in this behalf, to iuspect

gagee, or both, any further or other powers of leasing or having and make copies or abstracts of or extracts from the doou

reference to leasing; and any further or other powers so

reserved or conferred shall be exerciseable, as far as may ments of title relating to mortgaged property in the custody

be, as if they were conferred by this Act, and with all the or power of the mortgagee.

like incidents, effects, and consequences, unless & contrary (2.) This section applies only to mortgages made after the

intention is expressed in the mortgage deed. commencement of this Act, and shall have effeot notwithstanding any stipulation to the contrary.

(16.) Nothing in this Act sball be construed to enable :

mortgagor or mortgagee to make a lease for any longer term 17. Restriction on consolidation of mortgages.] (1.) A mort. or on any other conditions than such as could have beea gagor seeking to redeem any one mortgage, sball, by virtue granted or imposed by the mortgagor, with the concurrence of this Act, be entitled to do so, without paying any money of all the incumbrancers, if this Act had not been passed. due opder any separate mortgage made by him, or by any (16.) This section applies only in case of a mortgage made person through whom he claims, on property other than that

after the commencement of this Act; but tbe provisions comprised in the mortgage which he seeks to redeem. thereof, or any of them, may, by agreement in writing made

(2.) Tbis section applies only if and as far as a contrary after the commencement of this Act, between mortgagor and intention is not expressed in the mortgage deeds or one of mortgagee, be applied to a mortgage made before the comthom.

mencement of this Act, so Devertheless, that any such agree(3.) This section applies only where the mortgages or ment shall not prejudically affect any right or interest of any one of them are or is made after the commoncement of this mortgagee not joioing in or adopting the agreement. Act.

(17.) The provisions of this section referring to a lease shall Leases.

be construed to extend and apply, as far as circumstances 18. Leasing powers of mortgagor and of mortgagee in pose admit, to any letting, and to an agreement, whether in session.] (1.) A mortgagor of land while in possession shall, as against every incumbrancer, bave, by virtue of this Act, power to make from time to time any such lease of the morto

Sale ; Insurance ; Receiver ; Timber. gaged land, or any part thereof, as is in this section described 19. Powers incident to estate or interest of mortgagee.] (1.) and authorised.

A mortgagee, where the mortgage is made by deed, shall, by (2.) A mortgagee of land while in possession shall, as virtue of this Act, have the following powers, to the like against all prior incumbrancers, if any, and as against the extent as if they had been in terms conferred by the mort mortgagor, have, by virtue of tbis Act, power to make from gage deed, but not further (namely): time to time any such lease as aforesaid.

(i.) A power, wben tbe mortgage money has become dse, (3.) The leases which this section authorises are

to sell, or to concor with any other person in selling, (i.) An agricultural or occupation lease for any term not the mortgaged property, or any part thereof, either exceeding twenty-one years; and

subject to prior charges, or not, and either together or (ii.) A building lease for any term not exceeding ninety

in lots, by public auction or by private contract, sabject nine years.

to such conditions respecting title, or evidence of title, (4.) Every person making a lease under this section may

or other matter, as he (the mortgagee) thinks fit, with execute and do all aseurances and things necessary or proper power to vary any contract for sale, and to bay in at in that behalf.

an auction, or to resciod any contract for sale, and to (5.) Every such lease shall be made to take effect in pos. re-sell, without being answerable for any loss ocsession not later than twelve months after its date.

casioned thereby; and (6.) Every such lease sball reserve the best rent that (ii.) A power, at any time after the date of the mortgage can reasonably be obtained, regard beiog had to the cir.

deed, to insure and keep insured against loss or cumstances of the case, but witbout any fine being taken. damage by fire any building, or any effects or (7.) Every such lease shall contain a covenant by the

property of an insurable nature, whether affixed to lessee for payment of the rent, and a condition of re-entry the freehoid or not, being or forming part of the on the rent not being paid within a time therein specified

mortgaged property, and the premiams paid for any not exceeding thirty days.

such insurance shall be a charge on the mortgaged (8.) A counterpart of every such lease shall be executed

property, in addition to the mortgage money, and with by the lessee and delivered to the lessor, of which execu. the same priority, and with interest at the same rate, tion and delivery the execution of the lease by the lessor as the mortgage money; and shall, in favour of the lessee and all persons deriving title (ii.) A power, when the mortgage money has become dos, under bim, be sufficient evidence.

to appoint a receiver of the income of the mortgaged (9.) Every such building lease shall be made in con. property, or of any part thereof; and sideration of the lessee, or some person by whose direction | (iv.) A power, while the mortgageo is in possession, to cat

' Journal

, 1851.

and sell timber and other trees ripe for cutting, and not interest, or right in priority to the mortgage, all the deeds
planted or lett standing for shelter or ornament, or to anı documents relating to the property, or to the title thereto,
contract for any such cutting and sale, to be completed which a purchaser under the power of sale would be entitled
within any time not exceeding twelve months from to demand and recover from him.
the making of the contract.

22. Mortgagee's receipts, discharges, fc.] (1.) The receipt (2.) The provisions of this Act relating to the foregoing in writing of a mortgages shall be a sufficient discharge for powers, comprised ei her in this section, or in any subsequent | any money arising under the power of sale conferred by this section regulating the exercise of those powers, may be Act, or for any money or securities comprised in big mortgage, varied or extended by the mortgage deed, and, as so varied or arising thereunder; and a person paying or transferring or extended, shall, 88 far as may be, operate in the like the game to the mortgagee shall not be concerned to inquire manner and with all the like incidents, effects, and conse. whether any money remains due uader the mortgage. quences, as if such variations or extensions were contained

(2.) Money received by a mortgages under his mortgage in this Act.

or from the proceeds of securities comprised in his mortgage (3.) This section applies only if and as far as a contrary in.

shall be applied in like manner as in this Act directed re. tention is not expressed in the mortgage deed, and shall have specting money received by him arising from & sale under effect subject to the terms of the mortgage deed and to the the power of sale cooferred by this Act; but with this provisions therein contained.

variation, that the costs, charges, and expenses payable (4.) Tbis section applies only where the mortgage deed is shall include the costs, charges, and expenses properly executed after the commencement of this Act.

incurred of recovering and receiving the money or securities, 20. Regulation of exercise of power of sale.] A mortgagee

and of conversion of securities into money, instead of those shall not exercise the power of sale conterred by this Act

incident to sale. unless and until

23. Amount and application of insurance money.] (1.) (i.) Notice requiring payment of the mortgage money has The amount of an iosurance effected by a mortgagee against

been served on the mortgagor, or one of several mort. loss or damage by fire under the power in that behalf congagors, and default bas been made in payment of the ferred by this Act shall not exceed the amount specified in mortgage money, or of part thereof, for three months the mortgage deed, or, if no amount is therein specified, after such service ; or

then shall not exceed two third parts of the amount that (ii.) Some interest under the mortgage is in arrear and

would be required, in case of cotal destruction, to restore the unpaid for two months after becoming due ; or property insured. (ii.) There bas been a breach of some provision contained (2.) An insurance sball not, under the power conferred by

in the mortgage deed or in this Act, and on the this Act, be effected by a mortgagee in any of the following
part of the mortgagor, or of some person concurring cases (namely):
in making the mortgage, to be observed or performed, (i.) Where there is a declaration in the mortgage deed that
other than and besides a covenant for payment of the po insurance is required:
mortgage money or interest thereon.

(ii.) Where an insurance is kept up by or on behalf of 21. Conveyance, receipt, &c., on sale.] (1.) A mortgagee

the mortgagor in accordance with the mortgage exercising the power of sale conferred by this Act sball have

deed: power, by deed, to convey the property sold, for such

(ii.) Wbere the mortgage deed contains no stipulation re. estate and interest therein as is the subject of the mortgage,

specting insurance, and an insurance is kept up by freed from all estates, interests, and rights to which the

or on behalf of the mortgagor to the amouot in mortgage bas priority, but subject to all estates, interests,

which the mortgagee is by this Act authorised to and rights whioh bave priority to the mortgage ; except that,

insure. in the case of copybold or customary land, the legal right to (3.) All money received on an insurance effected under admitrance shall not pass by a deed under this section, unless

the mortgage deed or under this Act shall, if the mortgages the deed is sufficient otherwise by law, or is sufficient by \ 80 requires, be applied by the mortgagor in making good custom, in that bebalf,

| the loss or damage in respect of which the money is ra. (2.) Where a conveyance is made in professed exercise of

ceived. the power of sale conferred by this Act, the title of the pur

(4.) Without prejudice to any obligation to the contrary chaser shall not be impeachable on the ground that no case

imposed by law, or by special contract, a mortgagee may had arisen to authorise the sale, or that due notice was not

require that all money received on an insurance be applied given, or that the power was otherwise improperly or irregu.

in or towards discharge of the money due under his mortlarly exercised; bui any person damnified by an unauthorised,

gage. or improper, or irregular exercise of the power shall have 24. Appointment, powers, remuneration, and duties of re. his remedy in damages against the person exercising the ceiver.] (i.) A mortgagee entitled to appoint a receiver under power.

the power in that behalf conferred by this Act shall not appoiat (3.) The money which is received by the mortgagee, a receiver until he has become eatitled to exercise the power arising from the sale, after discharge of prior incnmbrances to of sale conferred by this Act, but may then, by writing which the sale is not made subject, if any, or after payment under his hand, appoint such person as he thinks fit to be into Court under this Act of a sum to meet any prior incum.

receiver. brance, sball be held by bim in trust to be applied by him, (2.) The receiver shall be deemed to be the agent of the first, in payment of all costs, charges, and expenses, properly mortgagor ; and the mortgagor shall be solely responsible for incurred by him, as incident to the sale or any attempted the receiver's acts or defaults, unless the mortgage deed sale, or otherwise ; and secondly, in discharge of the mort. | otherwise provides. gage money, interest, and costs, and other money, if any, (3.) The receiver shall have power to demand and recover due ander the mortgage ; and the residue of the money so all the income of the property of which he is appointed received shall be paid to the person entitled to the mortgaged receiver, by action, distress, or otherwise, in the name property, or authorised to give receipts for the proceeds of the either of the mortgagor or of the mortgagee, to the full ex, sale thereof.

tent of the estate or interest which the mortgagor could (4.) The power of sale conferred by this Act may be exer- | dispose of, and to give effectual receipts, accordingly, for cised by any person for the time being entitled co receive and the same. give a discharge for the mortgage money.

(4.) A person paying money to the receiver shall not be (5.) Tbe power of sale conferred by this Act shall not affect concerned to inquire whether any case has happened to the right of foreclosure.

authorise the receiver to act. (6.) The mortgagee, his executors, administrators, or (5.) The receiver may be removed, and a new receiver assigns, shall not be answerable for any involuntary Ings may be appointed, from time to time by the mortgagee by happening in or about the exercise or execution of the writing under his hand. power of sale conferred by this Act or of any trust connected (6.) The receiver shall be entitled to retain out of any therewith.

money received by bim, for bis remuneration, and in satis. (7.) At any time after the power of sale conferred by this faction of all costs, charges, and expenses incurred by him as Act has become exerciseable, the person entitled to exercise receiver, a commission at such rate, not exceeding five per the same may demand and recover from any person, orber centum on the gross amount of all money received, as is than a person having in the mortgaged property an estate, specified in his appointment, and if no rate is so specified, then

' Journal

1881

at the rate of five per centum on that gross amount, or at remains unpaid, pay to the mortgagee interest thereon, such bigher rate as the court thinks fit to allow, on applica or on the unpaid pert thereof, at the stated rate, by tion made by him for that purpose.

equal half-yearly payments, the first thereof to be made (7.) The receiver shall, if so directed in writing by the at the end of six calendar months from ihe day stated mortgagee, insure and keep insured against loss or damage by for payment of the mortgage money : fire, out of the money received by him, any building, effects, Secondly, a proviso to the effect following (namely): or property comprised in the mortgage, whether affixed to That if the mortgagor, on the stated day, pays to the tbe freebold or not, being of an insurable nature.

mortgagee the stated mortgage money, with interest (8.) The receiver shall apply all money received by him as thereon in the meantime, at the stated rate, the mortfollows (Damely):

gagee at any time thereafter, at the request and cost of (i.) In discbarge of all rents, taxes, rates, and outgoings the mortgagor, sball re-convey the mortgaged property whatever affeating the mortgaged property ; and

to the mortgagor, or as he sball direct. (ii.) In keeping down all appval sums or other payments,

27. Forms of statutory transfer of mortgage in schedule. ] and the interest on all principal sums, having priority laj A transfer of a statutory mortgage may be made by a to the mortgage in right whereof he is receiver ;

er ; | deed expressed to be made by way of statutory transfer of and (ii.) In payment of his commission, and of the premiums

mortgage, being in such one of the three forms (A.) and

(B.) and (C.) given in Part II. of the Third Sobedule to this on fire, life, or other insurances, if any, properly pay. able under the mortgage deed or under this Act, and

Act as may be appropriate to the case, with such variations

and additions, if any, as circumstances may require, and the the cost of executing necessary or proper repairs

| provisions of this section shall apply thereto. directed in writing by the mortgagee ; and

(2.) In whichever of those three forms the deed of transfer (iv.) In payment of the interest accruing due in respect

is made, it shall have effect as follows (namely): of any principal money due under the mortgage ;

(i.) There shall become vested in the person to whom the and sball pay the residue of the money received by him

benefit of the mortgage is expressed to be transferred, who, to the person who, but for the possession of the receiver,

with his executors, administrators, and assigns, is hereafter would bave been entitled to receive the income of the

in this section designated the transferee, the right to demand, mortgaged property, or who is otherwise entitled to that

sue for, recover, and give receipts for the mortgage money, property.

or the unpaid part thereof, and the interest then due, if any, Action respecting Mortgage.

and thenceforth to become due thereon, and the benefit of 25. Sale of mortgaged property in action for foreclosure,

all securities for the same, and the benefit of and the right to &c.-15 & 16 Vict. c. 86, s. 48.] (1.) Any person entitled to

sue on all covenants with the mortgagee, and the right to redeem mortgaged property may have a judgment or order

exercise all powers of the mortgagee : for sale instead of for redemption in an aotion brought by

(ii.) All the estate and interest, subject to redemption, of him either for redemption alone, or for sale alone, or for

the mortgagee in the mortgaged land shall vest in the sale or redemption, in the alternative.

transferee, subject to redemption, (2.) In any aotion, whether for foreclosure, or for re

(3.) If the deed of transfer is made in the form (B.), there demption, or for sale, or for the raising and payment in

shall also be deemed to be included, and there shall by virtue

of this Act be implied therein, a covenant with the transferee by any manner of mortgage money, the Court, on the request of the mortgagee, or of any person interested either in the

the person expressed to join therein as covenantor to the mortgage money or in the right of redemption, and, not

effect following (namely): withstanding the diagent of any other person, and notwith

That the covenantor will, on the next of the days by the

mortgage deed fixed for payment of interest, pay to the standing that the mortgagee or any person so interested

transferee the stated mortgage money, or so much thereof does not appear in the action, and without allowing any

as then remains unpaid, with interest thereon, or on the time for redemption or for payment of any mortgage

unpaid part thereof, in the meantime, at the rate stated money, may, if it tbipks fit, direct a sale of tbe mortgaged

in the mortgage deed ; and will thereafter, as long as property, on suoh terms as it thinks fit, including, if it

the mortgage money, or any part thereof, remains unthibks fit, the deposit ip Court of a reasonable som fixed

paid, pay to the transferee interest on that sum, or the by the Court, to meet the expenses of sale and to secure

unpaid part thereof, at tbe same rate, on the successive performance of the terms.

days by the mortgage deed fixed for payment of interest. (3.) But, in an action brooght by a person interested in (4.) If the deed of transfer is made in the form (C.), it the right of redemption and seeking a sale, the Court may, sball, by virtue of this Act, operate not only as a statutory ou the application of any defendant, direct the plaintiff transfer of mortgage, but also as a statutory mortgage, and to give soch security for costs as the Court thinks fit, and the provisions of this section shall have effect in relation may give the conduct of the sale to any defendant, and thereto, accordingly ; but it sball not be liable to any inmay give soch directions as it thinks fit respeoting the creased stamp duty by reason only of it being designated a costs of the defendants or any of them.

mortgage. (4.) In any case within this section the Court may, if it thinks fit, direct a sale without previously determining

28. Implied covenants, joint and several.] In a deed of the priorities of incumbranoers.

statutory mortgage, or of statutory transfer of mortgage, (5.) This section applies to actions brought either before

where more persons than one are expressed to convey as or after the commencement of this Act.

mortgagors, or to join as covenantors, the implied covenant

on their part shall be deemed to be a joint and several cove(6.) Tbe enactment described in Part II, of the Second

nant by them; and where there are more mortgagees or more Sobedule to this Act is hereby repealed.

transferees than one, the implied covenant with them shall (7.) This section does not extend to Ireland.

be deemed to be a covenant with them jointly, anless the

amount secured is expressed to be secured to them in shares V.-STATUTORY MORTGAGE.

or distinct sums, in which latter case the implied covenant 26. Form of statutory mortgage in schedule.] (1.) A mort. with them shall be deemed to be a covenant with each gage of freehold or leasehold land may be made by a deed severally in respect of the share or distinct su m secured to expressed to be made by way of statutory mortgage, bim. being in the form given in Part I. of tbe Third Schedule

29. Form of re-conveyance of statutory mortgage is schedule.] to tbis Aot, with such variations and additions, if any, as A re-conveyance of a statutory mortgage may be made by circumstances may require, and the provisions of this

& deed expressed to be made by way of statutory re-000section shall apply thereto.

veyance of mortgage, being in the form given in Part (2.) There shall be deemed to be included, and there shall

III. of the Third Schedule to this Act, with such variations by virtue of this Act be implied, in the mortgage deed

and additions, if any, as circumstanoes may require. First, a covenant with the mortgagee by the person expressed therein to convey as mortgagor to the effect following

VI.-TRUST AND MORTGAGE ESTATES Oy Death. (namely): That the mortgagor will, on the stated day, pay to the mort- 30. Devolution of trust on mortgage estates on death-37 &

gegee the stated mortgage money, with interest thereon in 38 Vict. c. 78-38 & 39 Vict. c. 87.] (1.) Where an estate the meantime, at the stated rate, and will thereafter, if or interest of inheritance, or limited to the heir as specia and as long as the mortgage money or any part thereof ocoupant, in any tenements or hereditamente, corporeal or

« PreviousContinue »