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

advance by a

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 fee on a further 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.
SEC. 1.

Where the mortgagor is not a party.

Conversion of

a mortgage

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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.”

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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 demise, to a by the mortgagee for the term, the mortgage for a term mortgage in is to be converted into a mortgage in fee, the mortgagor

fee on the ad

further sum by

gagee.

vance of a and mortgagee must join "according to their respective 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

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

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, transfer. &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

CHAP. V.

SEC. II.

Estate of the mortgagee.

are then conveyed unto and to the use of the mortgagee in fee, with a proviso that, on payment of the mortgage money and interest, on a certain day, the premises shall be re-conveyed to the mortgagor, his heirs and assigns, or as he or they shall direct and appoint,-which is more proper than directing that, on payment of the money, the deed shall be void. The mortgagor covenants for payment of principal and interest, and also enters into covenants for title,-for further assurance in default of payment on the day limited,—and that, until such default, the mortgagor shall quietly enjoy.

If the principal and interest are not paid on that day, the estate, at law, becomes forfeited; but, in equity, the mortgagee is obliged to re-convey to the mortgagor, on payment of principal and interest.

If a mortgagee recover possession by ejectment, as he may do at any time after the day fixed in the proviso for redemption has elapsed, and continue in the possession and receipt of the rents for twenty years or more, and no account be settled, or any other act done in that period to keep the equity of redemption open, the estate, whatever may be its value, is forfeited to the mortgagee, and becomes real estate in him. As it may be doubtful, in some cases, whether a mortgage so circumstanced, is to be considered as real or personal estate, and the mortgagee may want to make his will, it would be proper to devise it as real estate, with a declaration, that if it shall be determined to be personal estate, the money shall go to the devisee in lieu of the land (1).

(1) This declaration, however, lies open to the objection, that it might be construed to be tantamount to an acknowledgment, that the mortgagor has still a right to come in and redeem.

CHAP. V.

SEC. II.

Mortgagee's

fee.

A mortgagee may make use of all his remedies simultaneously (that is to say),-he may bring an action at law for the mortgage-money upon the covenants,-an remedies. ejectment, to recover possession of the estate,—and may file a bill to foreclose the mortgagor, at the same time. Where a mortgage in fee is to be transferred, with Transfer of a mortgage in the concurrence of the mortgagor, he and the old mortgagee convey to the new mortgagee, with a new proviso for redemption,-a covenant from the old mortgagee that he has done no act to encumber,-and the same. covenants from the mortgagor as upon an original mortgage. But if the mortgagor is not a party to the deed, then, as no new proviso for redemption can be inserted in it, the lands must be conveyed by the old mortgagee to the new mortgagee, habendum "unto and to the use "of him, his heirs and assigns for ever, subject to such

66

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right and equity of redemption, on payment to the latter, his executors, &c. of the principal and interest,

as by virtue of the original mortgage were subsisting concerning the premises," and the old mortgagee must assign the money to the new mortgagee, with a covenant that he has done no act to encumber the premises, and that "he has not received, released, assigned " or encumbered the mortgage-money or interest.”

second mort

gage.

If an estate be mortgaged a second time, the first Recital in security should be stated, and the second made subject to it, for otherwise, by the 4th and 5th William and Mary, c. 16, the mortgagor would forfeit his equity of redemption (1).

All second mortgages should contain a declaration, Declaration on the part of the mortgagor, that on payment of the necessary in a

(1) This statute, in practice, is very rarely attended to, though it cannot be considered to be quite obsolete.

second mort

gage.