"request, and at the costs and charges of "the mortgagor, his heirs or assigns, sur"render the messuages, &c. and the residue "of the term therein, to the mortgagor, his "heirs or assigns, or assign the same messuages, &c. for the residue of the term "therein, to such person or persons, and for "such purposes, as the mortgagor, his heirs "or assigns, shall direct or appoint." So in mortgages in fee, the proviso is either, "that the grant or release hereby made shall "cease and be void to all intents and purposes whatsoever," or "that the mortga

66

gee, his heirs, &c. shall convey to the "mortgagor, his heirs or assigns, or to such

66

person or persons, and for such uses, in"tents, or purposes, as he or they shall di"rect or appoint;" and sometimes the circumstances require that the proviso shall be still more special.

To begin with mortgages in fee will more fully illustrate the reason by which these different provisions are dictated.

The object of the proviso of redemption, is, in all cases, to express that there is to exist a right of redemption. When an actual and efficient condition is expressed, there is the two-fold use of reserving the right of redemption, and of defeating the estate of the mortgagee, in case the money shall be paid according to the condition. The leading rule is, that no one, except the person

by whom the conveyance is made, or his representatives, viz. his heirs as to real estates, or his executors as to chattel interests, can take advantage of a condition. The rule is pithily expressed in these terms-" a condi"tion cannot be reserved to a stranger." The operation of the condition must be, to restore the seisin or estate of the person, from whom it moved, or to his heir, in case of real estate, or to his executor or administrator in the case of chattel interests. When A. is seised in fee, and conveys to B. in fee, by way of mortgage, the obvious intention of the parties is, that, upon payment of the money at the appointed time, the estate of B. shall cease, and revest in A. or his heirs. This may be accomplished by a condition, expressed in formal language; but when A. is seised in fee, as a mortgagee under B. and A. and B. join in a transfer of that mortgage, the effect of a condition introduced into this transfer, would, if the condition operated, be to restore the estate to A. the former mortgagee, instead of revesting it in B. the person in whom it is intended that the estate shall vest, when the mortgage debt is discharged. Great inconvenience might arise from having the estate revested in the former mortgagee. The same inconvenience might arise when A. is a trustee, instead of being a mortgagee; and though it seldom happens that a mortgage condition

is performed, so as to become operative and produce this inconvenience, yet, with reference to the possible inconvenience and technical propriety, there has been introduced into practice, an agreement that the mortgagee shall convey to the beneficial owner, his heirs or assigns, or as he or they shall appoint, instead of a condition, which, if it operated, would produce the inconvenience that has been noticed. Similar reasons operate in dictating the form of the proviso for redemption in mortgages, by way of demise, creating terms for years, and in assignments by the beneficial owner, as distinguished from assignments made by the beneficial owner with the concurrence of a former mortgagee or a trustee. In the present state of mortgage transactions, the probability, and almost certainty, is, that the money will not be paid at the day; and the form of the proviso for redemption, is in this particular, not so material as it would be, if the parties intended that this clause should have a full and precise operation. The more material point is, that the form of the proviso displays the skill of the person by whom it is prepared, and tends rather to shew the application of the law, than to produce any utility expected to arise from a strict adherence to form. The following observations will be added, as relevant to the point under consideration.

1st, In mortgages by way of demise for years, from A. to B. or from A. and his trustee to B. the proviso should be, that the term shall cease and be void.

2dly, This is also the proper conclusion, when A. has a term for years, and assigns to B. by way of mortgage; or

3dly, When A. seised in fee, conveys to B. in fee, by way of mortgage.

The same form also might with strict propriety, in point of law, be used when A. is seised in fee, and demises to B. for years by way of mortgage, and A. and B. join in an assignment and confirmation of the term to C. by way of mortgage, for securing money payable by A.; for in this instance the condition will operate by way of defeasance, and its effect, should the condition be performed, will be to extinguish the term for the benefit of A. as having the reversion; for the very ground on which the condition may operate in favour of A. is, that A. has the reversion, so that the defeasance partakes, in some degree, of the nature of a surrender. While inchoate, it operates as a contract for a surrender, and when it operates, it produces the effect of an actual surrender. It It may be safely assumed, that a defeasance cannot give effect to the intention of the parties, except it is between per-, sons, who stand in the relation of lord and tenant, or tenant and reversioner. In all

other cases, the general form of the proviso for redemption, should stipulate that the mortgagee shall convey or assign to the person intitled to the redemption, his heirs, &c. or as he or they shall direct. These clauses, indeed, are become general in practice, and have almost excluded conditions in their proper form; and it is more correct, that these agreements for redemption should omit all words which may be construed as conditions, so that they may be clearly and unquestionably agreements for redemption, and not conditions, either in operation or in form.

Lastly, In all leases, there should be covenants, on the part of the lessee, adapted to the nature of the lease and the agreement of the parties in particular there should be a covenant for payment of rent.

In farming leases there should be cove nants, prescribing the mode of managing the farm.

In building leases and repairing leases there should be covenants to build, repair, &c. and for insurance against fire.

And in leases of houses for occupation, there should be covenants respecting the repairs, fixtures, painting, &c.

In short, the covenants in every lease must vary with the intention of the parties, and the agreement between them; and for all these purposes the best guides are