original deed, and therefore, as to them, it is merely the substitution of a new trustee to uses. But, in such cases, the uses must be exactly the same as are expressed in the original mortgage, or such as by death or otherwise have indisputably taken place since it was executed, otherwise the proviso will be void as to the party whose former estate has not been secured under it to the same extent as under the first mortgage. If the father joins in the transfer, in the way last stated, it is usual for him to covenant, that he, or the person or persons entitled to the equity of redemption, will pay the mortgagemoney and interest; but he must not covenant for the title. CHAP. V. SEC III. gage money When a new proviso is not inserted, (and, perhaps, when When a new proviso not init is, in such a case as the one last above supposed) the serted, mortmortgage-money should be assigned to the mortgagee, should be as that he may not only have an equitable charge or lien signed to the mortgagee. on the land, if the legal estate should not be regularly transmitted to him, but also that he may be able to sue the original mortgagor upon his covenant for the payment of the money. And a power of attorney should be given to the transferree, for an action upon such a covenant must be brought in the name of the original covenantee, or his executors or administrators, for money due on covenant is a chose in action like a bond, and not assignable at law. SECTION III. Of the mortgage of leaseholds for lives and years. Where money is advanced on estates held under General provi renewable leases, the estate should be vested in the sions of a mortgage of leasehold. CHAP. V. SEC. III. Provisions for the renewal of the lease. mortgagee, "in trust, out of the rents and profits "of the premises, to pay the rents reserved by "the original lease, and to perform the covenants "therein contained on the lessees' or assignees' part, "and to renew the lease, and, out of the rents, or by "mortgage of the premises, to raise and levy a compe"tent sum of money for paying the fine, fees and expen 66 ses of every such renewal, and, subject thereto, the "mortgagee must be declared to stand seised or possess"ed (as the case may be) of the premises during the con"tinuance of the estate term and interest, by the "present, and all subsequent leases, granted, or to be "granted, In trust, by mortgage or sale, to raise and 66 levy the mortgage-money and interest by a given day, "and, subject thereto, In trust for the mortgagor." On the mortgage of such property, the subsisting lease should be recited, and if it has not been granted to the mortgagor himself, it must be deduced to, and be shewn to be vested in him, and there should be a covenant for payment of the mortgage-money and interest, that the lease is valid and subsisting, and the other usual covenants. Where leasehold for lives or years is mortgaged under a common proviso, and the mortgagor is unable or unwilling to renew the lease, it is necessary for the mortgagee to do it, and therefore, in common mortgages of this kind, it is usual to insert an agreement to that effect, and also that any money advanced for that purpose by the mortgagee, shall pay interest from the time of advancing it, though it is now clearly settled that, even without such a stipulation, money advanced by the mortgagee for the fines and fees of renewal shall be liable to interest, from the time of its being advanced. CHAP. V. SEC. III. Care should always be taken that the lease be renewed in the name of the person who had the former interest, Precautions as or in the name of his representatives, for otherwise the to the renewal new lease will be voidable, or perhaps void. of leases. name of the mortgagor. If the owner renew the lease in his own name, when Renewal in the the lands are in mortgage, a new deed must be prepared, by which, after reciting the lease subsisting at the time of the mortgage, the mortgage-deed, and the new lease, and taking notice that the same was taken in the name of the mortgagor, subject to the payment of the mortmoney and interest, to and for his own use and benefit, the mortgagor must convey or assign to the mortgagee, In trust to renew, &c., or subject to a proviso for redemption, as the case may be. name of the When, on the other hand, a lease for lives or years Renewal in the is renewed in the nanie of the mortgagee, inasmuch as, mortgagee. without a declaration of trust, he would appear to be the owner of the estate, it is necessary that a deed should be executed, by which, after reciting the old lease, the mortgage, and the new lease, and taking notice that the mortgage-money remains due, the lessee must declare, that the lease was so "made to, and taken in his name, "In trust, in the first place, for securing the mortgagemoney and interest, and, subject thereto, In trust for "the mortgagor." If a sum of money is to be borrowed for a short period, Form of mortmage, where on the security of leasehold for lives, the lessee, after the term is reciting the lease, may demise "for a term of years, ha- only for a short period. "bendum to the mortgagee for the term, (if the [three] "lives, or if any of them, shall so long live) subject to "the usual proviso for making void the term, with the "usual covenants on a demise, and a covenant from the "mortgagor, that at the death of any of the trustees, he L 146 CHAP. V. 8ECT. IV. " will Proper securities on mort gage of West Indian property. SECTION IV. On the mortgage of West Indian property. In lending money on Jamaica security it would be prudent to take a mortgage payable at a short day, and an admission of judgment in ejectment for the land, and judgment in replevin for the slaves and stock, and then give a defeazance not to enforce payment of the principal of the mortgage, or to carry the judgments into execution, (except lodging writs thereon, from time to time, so as to prevent the necessity of reviving by scire facias) for such term as shall be agreed on, Provided the mortgagor ships his crops of sugar to the mortgagee, and thereout pays all advances subsequent to the mortgage, which will include the annual supplies sent out to the estate, the interest of the mortgage-debts, and a certain portion of the principal, and the remainder to be paid to the order of the mortgagor. A list of the slaves and stock should always be annexed, and a separate list taken by the mortgagee, and a certificate or memorandum at the bottom, signed by the mortgagor, expressing that such slaves are upon the estate the reason of this is, there is a law of the island, empowering mortgagors, or those claiming under them, to give evidence of the identity of slaves and stock, in case where they are served on by virtue of writs of execution against the mortgagor, and replevied in the name of the mortgagee, and such list will prevent the mortgagor colluding with a judgment creditor, as it secures his testimony to the identity of the thing mortgaged. CHAP. V. SEC. IV. a mortgage. A mortgage covers the negroes against all junior or sub- Effect of such sequent judgments, and the lands against all judgments whatsoever; but the mortgagee is often put to great trouble, and where the mortgage is very old it is almost impossible, to prove the identity of the thing mortgaged, and in case he fails he loses his pledge. For instance, a junior judgment creditor lodges his writ, and levy is made on the slaves actually comprised in the prior mortgage, the mortgagee brings a replevin against the officer making the levy,-the onus probandi lays on the mortgagee, and in case he cannot shew that the slaves levied on were in the possession of the mortgagor at the time of the execution of the mortgage, and included in that pledge, he will be nonsuited, and the slaves will be sold, and the money applied to the prior judgment in the office. The following forms will exhibit the peculiar provisions of a mortgage-deed, and will, at the same time, elucidate the preceding observations. covenants in PROVIDED ALWAYS, and it is hereby agreed, &c., and their Proviso and true intention is, that, if the said [mortgagor], his heirs, executors, administrators or assigns, shall and do well and truly pay, or cause, &c., to the said [mortgagee], his executors, administrators or assigns, the sum of £- of lawful money current in England, with interest for the same at the rate of £5 for £100, for a year, on or at the following |