£, with all interest due for the same and all costs occasioned by the non-payment thereof, shall be paid at the end of six calendar months from the giving or leaving of such notice, it shall be lawful for the said [mortgagee], his heirs, [executors, administrators (109) ] or assigns, at any time or times after the expiration of the said notice, without the necessity of the concurrence or consent of the said [mortgagor], his heirs or assigns, to sell the said hereditaments and premises, together or in parcels, by public auction or private contract, and subject or not subject to any special or other conditions or stipulations relative to the title or evidence of title or otherwise, as shall appear expedient, and with full power to purchase in the said hereditaments, or any part or parts thereof, at any auction, and also to rescind or vary the terms of any contract for sale, and to receive the money to arise from the sale or sales thereof, and out of the same money to retain and satisfy the said sum of £, with all interest due for the same, and all costs and expenses occasioned by the non-payment thereof; And the surplus (if any) of the money so to arise as aforesaid, shall be paid (110) to the said [mortgagor], his heirs, executors, administrators or assigns (111). And the said [mortgagor] hereby directs that Receipt clause.

prior incumbrances.

(111) If the mortgage is made subject to prior incumbrances, add a pro- Power to pay off vision to this effect:-" Provided also, and it is hereby further declared, "that it shall be lawful for the said [mortgagee], his heirs, executors, admi"nistrators or assigns, in the execution of the power of sale hereinbefore "contained, to sell the said several hereditaments comprised in the said "recited indentures of the day of and the day of respectively, either subject to or discharged from the respective mortgages thereby made, or either of them, and in case the same hereditaments "and premises respectively, or any part thereof, shall be sold discharged "from the said mortgages respectively, then to apply a competent part of parts of the money to arise from the sale or sales of the same hereditaments "and premises, or of any other hereditaments and premises to be sold under "the power hereinbefore contained, in or towards payment and satisfaction "of such mortgage or mortgages, and that the said [mortgagee], his heirs,

Proviso that mort gagee's right of foreclosure shall

not be affected.

Covenants by

mortgagor to pay mortgage money and interest,

-for right to convey,

every receipt which shall be given by the said [mortgagee], his heirs, executors, administrators or assigns, or his or their agent or agents, to any purchaser or purchasers under the power of sale hereinbefore contained, for his, her or their purchase-money, shall exonerate such purchaser or purchasers from all liability in respect of the application thereof, nor shall such purchaser or purchasers be obliged or concerned to inquire or take notice whether any sale or sales is or are necessary or proper for any of the purposes hereinbefore expressed, nor whether any such default has been made or notice given as aforesaid. PROVIDED ALSO, that the said mortgagor], his heirs, executors, administrators and assigns, shall, notwithstanding the power of sale hereinbefore contained and concurrently therewith, have all the rights and remedies, by foreclosure or otherwise, of a mortgagee in ordinary cases. (112) AND the said [mortgagor], for himself, his heirs, executors and administrators, hereby covenants with the said [mortgagee], his heirs, executors, administrators and assigns, that the said [mortgagor], his heirs, executors, administrators or assigns, will pay or cause to be paid unto the said [mortgagee], his executors, administrators or assigns, the said sum of £- with interest for the same after the rate aforesaid, at the time and in manner hereinbefore appointed for payment thereof. And also that the said [mortgagor] has in himself good right by these presents to assure the said

"executors, administrators and assigns, shall have full discretionary power "and authority to take such measures and make such arrangements in re"lation to the said mortgages, either by paying off the same and taking "transfers or assignments thereof, or otherwise, as shall be deemed necessary

or convenient for strengthening or improving the security hereby made, or "facilitating the execution of the said power of sale, and to pay and defray "all the costs, charges and expenses incident to such measures or arrangements, out of the moneys which shall come to his or their hands by virtue " of these presents."

(112) A clause to this effect is often inserted, though it appears to be dictated by super-abundant caution.

hereditaments and premises, with their appurtenances, unto and to the use of the said [mortgagee], his heirs and assigns

ment,

from incnm

brances,

assurance.

in manner aforesaid. And also that the said hereditaments for quiet enjoyshall or may be peaceably and quietly held and enjoyed, and the rents, issues and profits thereof taken accordingly, without eviction, interruption or denial whatsoever, Free and clear or for freedom by the said [mortgagor], his heirs, executors or administrators, kept indemnified from or against all former or other estates, rights, titles, charges and incumbrances. And also and for further that the said [mortgagor] and every person rightfully claiming any estate, right or interest in or to the said hereditaments and premises, or any part thereof, will or shall at any time and from time to time, (113) at the request of the said [mortgagee], his heirs, executors, administrators or assigns, but at the costs of the said [mortgagor], his heirs or assigns, until the said hereditaments and premises shall be sold and conveyed under the said power of sale, or the equity of redemption thereof be absolutely foreclosed, and afterwards, at the costs of the said [mortgagee], his heirs or assigns, do and execute every such act, deed, conveyance or assurance for more effectually assuring the said hereditaments and premises, with their appurtenances, unto or to the use of the said [mortgagee], his heirs or assigns, or as he, his heirs, executors, administrators or assigns shall direct, according to the true intent of these presents, as by the said [mortgagee], his heirs, executors, administrators or assigns, or his or their counsel, shall be required or advised. PROVIDED LASTLY, that until default in payment of the said sum of £, or the interest thereof, at the time and in manner aforesaid, it shall be lawful for the said [mortgagor], his heirs or assigns, to hold and enjoy and take the rents and profits of the said hereditaments and premises, without interruption or denial from or by the

Proviso that mort gagor shall enjoy till default.

(113) Not" after default," &c. as the forms often run. The mortgagee Covenant in mortshould have a right to call for the immediate removal of any defect.

n. 66, suprà.

Vide gage for further

assurance.

said [mortgagee], his heirs or assigns, or any person or persons rightfully claiming through or under him, but no purchaser or purchasers under the power of sale hereinbefore contained shall be affected by this provision. IN WITNESS, &c.

Parties.

RECITAIS,

are seised and possessed as j int tenants of freeholds and of leaseholds for years,

No. 25.

MORTGAGE in Fee, by LEASE and RELEASE, of Frecholds, and for a derivative Term, by way of UNDERLEASE of Leaseholds, with Power of Sale, and some Special Clauses.

THIS INDENTURE, made between [mortgagors], of, &c. of the one part, and [mortgagees], of, &c. of the other part. WHEREAS the said [mortgagors] are now seised as joint tenants

nances.

-that mortgagors of the inheritance in fee simple in possession of the freehold hereditaments hereinafter referred to, with their appurteAND WHEREAS the said [mortgagors] are now possessed, as joint tenants, of the leasehold tenements hereinafter referred to, with their appurtenances, for the unexpired residue of a term of years, commencing from the

loan.

in the

year

day

granted by an indenture bearing date, &c., and made between, &c., subject to the rent reserved, and covenants and conditions contained, in the said indenture of lease, on the part of the lessees, their executors, administraof agreement for tors and assigns, to be respectively paid and observed. AND WHEREAS the said [mortgagees] have, at the request of the said [mortgagors], agreed to lend to them the sum of £on having such security for the re-payment thereof, with interest, as hereinafter is contained. NOW THIS INDENTURE WITNESSETH, that in consideration of the sum of £- -, paid by the said [mortgagees] on the execution of these presents to the said [mortgagors], who hereby respectively acknowledge the receipt thereof, and therefrom release and discharge the said [mortgagees], their executors, administrators and assigns, Operative words. The said [mortgagors] Do, and every of them Doth grant,

TESTATUM,

Release of freeholds.

Consideration.

ence to a schedule

All deeds, &c.,

with power to sue

on covenants for

production, &c.

bargain, sell and release unto the said [mortgagees], (in their actual possession now being by virtue of a Bargain and Sale for a year, made to them by the said [mortgagors] on consideration of 5s. a piece, by Indenture dated the day next before the day of the date hereof,) All the freehold parcels of Parcels by refer ground, messuages, buildings and hereditaments comprised and plan. and particularised in the first part of the schedule hereunder written, and also delineated in the plan indorsed on the first skin of these presents, and therein distinguished by being coloured red, Together with the rights, members and appurtenances to the same premises belonging. And all the right, All estate, &c. title and interest, legal and equitable, of the said [mortgagors], and every of them, in or to the same premises. And all deeds, papers, writings and muniments in their or any of their custody or power, relating to the title to the same premises, or any part thereof, with authority (114) to sue in the names or name of them, or any of them, their or any of their heirs, executors or administrators, upon any covenants for the production of deeds, writings or muniments relating to such title, or any other covenants made or entered into concerning the same premises, or any part thereof. TO HOLD the said free- HABENDUM. hold hereditaments and premises hereby released, or intended so to be, unto and to the use of the said [mortgagees], their heirs and assigns, Nevertheless redeemable upon the terms hereinafter expressed. AND THIS Indenture furtHER WIT- FURTHEr TestaNESSETH, that for the consideration aforesaid, The said [mort- Underlease of gagors] Do, and every of them Doth, by way of underlease, demise (115) unto the said [mortgagees], their executors, administrators and assigns, All the leasehold parcels of grounds, Parcels by refer

(114) This authority is introduced to meet the case of a covenant to produce, &c. entered into with the mortgagors, and not running with the

land.

TUM.

leaseholds.

ence to a schedule and plan. Power to sue on personal covenant

to produce.

terest.

(115) A legal term may be derived out of the freehold by way of bargain Derivation of term and sale under the Statute of Uses, without entry, but it cannot be derived out of a chattel inout of a chattel interest otherwise than by a demise at the common law perfected by entry, (suprà, 80.)