gage of copyhold lands, to surrender them, upon the trusts of a deed of equal date, containing the proviso for redemption. CHAPTER V. OF MORTGAGES. 1. Of mortgage by way of demise, and of the transfer thereof. 2. Of mortgages in fee, and of the transfer thereof. SECTION I. Of mortgage by way of demise, and of the transfer thereof. When a sum of money is borrowed, on the security of an estate of much greater value, such mortgage is very often made by demise for a term of years, in which no recitals are necessary, except that the money has been agreed to be lent, in consideration of which the mortgagor "grants, bargains, sells and demises the lands, "together with, &c., and the reversion, &c. ;" but the words" and all the estate, &c." must be omitted; habendum to the mortgagee, his executors, &c. for a certain term, subject to a proviso, that, on payment of principal General form by demise. of a mortgage and interest on a certain day, the term shall cease and be void. If the money be actually paid at the time limited, or previous to it, the term, of course, becomes void; but to authenticate this fact, a receipt should be indorsed on the deed, and the witnesses should not only attest the signing, but also the payment of the money, and that it was paid on the day. Where the property is considerable, however, the term should be surrendered, in order that no question may afterwards arise as to the cesser of it. In one respect, a mortgage by way of demise is better than a mortgage in fee, since no inconvenience can arise from want of an heir-at-law to the mortgagee, a circumstance which, in the latter security, frequently occasions considerable difficulty and expense to the mortgagor, whereas, in the case of a term, if the mortgagee has made no will, an administration may be had, and the mortgagemoney paid to the person who has to re-convey the estate. In a demise by way of mortgage, the mortgagor covenants for payment of the money,—that he has power to demise, for peaceable enjoyment after default in payment, and that free from incumbrances,—and for further assurance after default,-with a declaration that, until default be made in payment, the mortgagor shall hold the premises. Where an estate, held by a lease for a long term of years, is to be mortgaged, and there appears to be any difficulty in deducing the title through all the mesne assignments, it is proper to take a demise from the mortgagor to a trustee for the mortgagee, for a term somewhat less than the unexpired residue of the original lease, in the same manner as if the former were seised in fee (though the covenant to that effect should be omitted): this is done the better to enable the mortgagee to recover possession of the mortgaged premises, by ejectment, should that be necessary; for as the law presumes every person to be seised in fee, the mortgagor's being in possession and the execution of the demise are all that are necessary to be proved as against him, and all persons claiming under him, whereas, if there were an assignment only of the long leaseholds, it might be difficult to deduce the title to the mortgagee, before a jury. CHAP. V SEC. I. In the transfer of mortgages for terms, the original Transfer of demise must be recited, and notice taken that the money demise. mortgage by is still due, and that the first mortgagee having occasion for it, the new mortgagee hath agreed to lend the same: the former mortgagee must then, in consideration of the said sum, "bargain, sell, assign, transfer and set over" the premises to the new mortgagee, his executors, &c., habendum for the residue of that term, subject to a proviso, that, on payment of the principal on a given day, with interest, the new mortgagee will surrender the term to the mortgagor, his heirs or assigns, or assign it to such persons as he or they shall appoint. demise to a fee on a further When, on the transfer of a mortgage, a further sum is Conversion of advanced by the second mortgagee, it is usual to change a mortgage by the mortgage for a term, into a mortgage in fee. In such mortgage in a transaction the parties should be the mortgagor of the first advance by a part, the mortgagee of the term of the second part,-and new mortgagee. the intended mortgagee of the third part. The demise must be recited, and the usual recitals inserted, that the money is due, that payment has been required,—and that the new mortgagee has agreed to lend such a sum to enable the mortgagor to pay off the former debt, and to supply his present occasions; in consideration whereof, the CHAP. V. Where the mortgagor is not a party. Conversion of a mortgage by demise, to a mortgage in fee on the advance of a mortgagor must "grant, bargain, sell, &c.," and mortgagee for the term may either "bargain and sell, &c.," or he may "assign and surrender" to the new mortgagee, his heirs and assigns, ALL, &c., habendum unto and to the use of the new mortgagee in fee, subject to the usual proviso of redemption; and the mortgagor must enter into the same covenants as upon a common mortgage in fee, in which the term need not be excepted as an incumbrance, but the mortgagee for the term must covenant that he has done no act to encumber. If the mortgagor be not a party to the transfer, then the lands must be assigned to the new mortgagee, for the residue of the term, subject to such right and equity of redemption, on payment to him, his executors, &c. of the principal and interest, as, by virtue of the demise, were subsisting of and concerning the premises; and the principal money and interest must be assigned to the new mortgagee, with a covenant that the former mortgagee has done no act to encumber the premises, and that he has not before "received, released, assigned or charged the principal sum and interest." 66 The money is assigned in order that the new mortgagee may stand in the place of the old mortgagee, and be entitled to take the same methods for recovering it as the latter might have done. Where, on the advance of a further sum of money by the mortgagee for the term, the mortgage for a term is to be converted into a mortgage in fee, the mortgagor and mortgagee must join " according to their respective further sum by the first mort- rights and interests" in conveying to a trustee to the use of a mortgagee in fee, subject to the usual proviso for redemption. By thus uniting the term and the fee, the former will merge in the latter; but if the term is gagee. to be kept on foot, the mortgagee may, before he takes the conveyance of the fee, assign the term to a trustee, "in trust for better securing the mortgage money and "interest, and, subject thereto, In trust for the mortgagor." By this means, if there be any judgments or secret incumbrances made by the mortgagor, subsequent to making the demise, and previous to the mortgage in fee, the term will protect the inheritance against them. CHAP. V. SEC. II. vanced by two persons on a transfer. When two persons lend money on the mortgage of an Money adestate, the whole may be conveyed to a trustee, as to one moiety, To the use of one mortgagee, his executors, &c. for a term of years; and as to the other moiety, To the use of the other mortgagee, his executors, &c. for a different term, with two provisoes and sets of covenants applicable to each term. Or if an estate is already in mortgage for a term, and the money is to be advanced by two persons equally on a transfer of the security, one moiety of the premises may be assigned to one mortgagee, with the usual proviso for redemption and covenants, and the other moiety may afterwards be assigned to the other mortgagee in the same way. SECTION II. Of mortgages in fee, and of the transfer thereof. in fee. Where there is no preceding mortgage, or outstanding General form estate, any recital is unnecessary, except that the mort- of mortgage gagee has agreed to lend the mortgagor a sum of money, on the security of the lands, &c. after-mentioned, which |