A New Abridgment of the Law with Large Additions and Corrections

ruled, where a bill for a redemption was brought against a mortgagee in possession, and a decree accordingly, that a mortgagee, before the account taken, having presented to a church that became void, should revoke his presentation (a) and present such a person as the mortgagor or his vendee (he having contracted to sell) should appoint.

Preced. Chan. 71. [That the mortgagor shall present, see Gally v. Selby, 1 Stra. 403; Kensey v. Langham, Ca. temp. Talb. 144; Robinson v. Jago, Bunb. 130. (a) Qu. How is the presentation to be revoked?] A mortgagor is deemed seised as to all persons except the mortgagee. Wilson v. Troup, 2 Cowen, 195; Astor v. Miller, 2 Paige, 68. See Morris v. Mowatt, 2 Paige, 586; Prescott v. Smyth, 1 M Cord's Ch. 486; Willington v. Gale, 7 Mass. 138; Taylor v. Porter, 7 Mass. 355; Goodwin v. Richardson, 11 Mass. 469; Snow v. Stevens, 15 Mass. 278; Eaton v. Whiting, 3 Pick. 484; Blanchard v. Brooks, 12 Pick. 47; Fay v. Cheney, 14 Pick. 399; Bradley v. Fuller, 23 Pick. 1; White v. Whitney, 3 Metc. 81; Barkamsted v. Farmington, 2 Conn. 600.

[In the case of Gardiner v. Griffith, the mortgage was of a long term in a naked advowson, and therefore a distinction was attempted; because the mortgagee could have no other satisfaction than by providing for a child, relation, or friend, on the advowson becoming void; and the rather, for that it was expressly so agreed in the mortgage-deed; but the court gave no opinion thereupon. And in the case of Mackenzie v. Robinson, which was the case of a mortgage of a naked advowson, Lord Hardwicke doubted the legality of such a covenant, that the mortgagee should present, it being a stipulation for something more than principal and interest; and the mortgagee, not being able to find any precedent in his favour, gave up the point of presenting; in consequence whereof, an order was made that the mortgagor should have liberty to present, and the mortgagee was obliged to accept of his nominee.

Gardiner v. Griffith, 2 P. Wms. 404; Mackenzie v. Robinson, 3 Atk. 560.

But, if the mortgagee present to an advowson, a bill, by the mortgagor, to compel the incumbent to resign and to deprive him of his living, will be dismissed, unless brought within six months after the death of the last incumbent. In such case the mortgagee, instead of bringing a foreclosure, should pray a sale of the advowson.

Gardiner v. Griffith, 2 Will. 405; 3 Atk. 458. ||Vide post, tit. Simony, as to a sale while church is void.||

A mortgagee takes the estate mortgaged in the same plight that it is in, in the hands of the mortgagor. If the mortgagor, therefore, has done any act that amounts to a forfeiture, the mortgagee will lose his security. Thus, tenant for life, with remainder to his wife for life, remainder to his sons in strict settlement, remainder over, having occasion for money, together with his wife, mortgaged the estate settled by way of lease and release and fine, come ceo, &c., which mortgage was afterwards assigned to the plaintiff, and another lease and release and fine levied and executed by the husband and wife for making good the assignment. The husband died, and a bill was brought against the widow and eldest son to compel them to redeem or to foreclose them, and to be relieved against the forfeiture. The defendant, the son, pleaded the marriage-settlement of his father and mother, who were but tenants for life, and insisted on the forfeiture; and the court allowed the plea the Lord Chancellor saying, that this was a contrivance to destroy the settlement and disinherit the son; and his lordship said, he had so decided in many cases, particularly in the case of Sir Harry Peachy and the Duke of Somerset.

Lady Whetstone v. Sainsbury, Prec. Chan. 591. See Willis v. Finneux, Ibid. 108.

A mortgagee, before foreclosure, cannot exercise any act of ownership over the property which may encumber the mortgagor. He can make no lease of the lands for years to an under-tenant. Thus in the case of Hungerford v. Clay, the bill was for redemption on payment of principal and interest. The substance of the answer was, that the defendant, the mortgagee, had made a lease of the house for five years at a rent reserved, with a covenant that the lessee should have the option of a farther lease for four years after the expiration of the said term; that the term for five years was now expired, and the lessee desired to take the premises for four years longer; that, if the plaintiff would grant such lease, the defendant would reconvey on payment of principal and interest. On hearing this case at the Rolls, the defendant had a decree; but, on appeal to the Chancellor, his lordship was of opinion, that the mortgagee, before foreclosure of the equity of redemption, could not lease the premises for years to bind the mortgagor, unless, to avoid an apparent loss, and merely in necessity: and the decree at the Rolls was reversed.

Hungerford v. Clay, 9 Mod. 1; 2 Eq. Ca. 610.

When a mortgagee obtains a renewal of a lease, or any other advantage, in consequence of his situation as mortgagee, the mortgagor coming to redeem is entitled to the benefit thereof.

Slee v. Manhattan Company, 1 Paige, 48.

A mortgagee in possession, who has clearly manifested his intention to hold as absolute owner, has a title and a possession not adverse to, nor inconsistent with the right of the mortgagor. The mortgagee's estate is in many respects a trust, and in chancery he is, in general, considered as a trustee, in whose favour the principle of the statute of limitations, or bar by lapse of time, does not apply, until a satisfaction or dereliction of the demand secured by the mortgage must be presumed.

Fenwick v. Macy, 1 Dana, 280.

A mortgagee in possession has no right to pay any of the produce of the estate to the mortgagor, after notice to pay such receipts to a prior mortgagee.

Archdeacon v. Bowes, 1 M'Clell. 165.

A mortgagee who has taken his debtor in execution, is, nevertheless, entitled to the benefit of his mortgage security.

Davis v. Battine, 2 Russ. & My. 76.

A mortgagee may pay off a senior encumbrance, and on a bill filed to foreclose, and to be reimbursed the sum he has paid, he is entitled to a decree of indemnity out of the proceeds of the sale of the mortgaged pre

mises.

Dale v. M'Evers, 2 Cowen, 118. See Silver-lake Bank v. North, 4 Johns. Ch. 370.g WASTE BY MORTGAGEE. ||—And as a mortgagee cannot, before foreclosure, exercise any act of ownership that will attach on the estate, but ought to reconvey the premises free from all encumbrances; so neither can he justify, in equity, the commission of any act which may injure the estate; therefore, though at law a mortgagee in fee may commit waste, yet he will be restrained in equity. Thus, on a bill to redeem a mortgage, wherein an account was decreed, and 250l. reported as due, and exceptions taken to the report; it being, on motion and reading affidavits, shown, that the defendant had

burnt some wainscot and committed waste, the defendant was ordered to deliver up possession to the plaintiff, who was a pauper, he giving security to abide by the event of the account.

Hanson v. Derby, 2 Vern. 392. A mortgagee in possession is chargeable for waste. Givens v. M'Calmont, 4 Watts, 460.7

So, where the mortgagee of an estate in fee had cut down trees, on application to the court it was decreed, that an account should be taken of what was cut down, and the produce applied in the first place to the payment of the interest, and then to the sinking of the mortgage; and an injunction was granted to stay felling any more.

A mortgagee in possession is chargeable with waste; but what is waste and what is not, as respects the clearing of timber land, must depend on the particular circumstances of the case.

Givens v. M'Calmont, 4 Watts, 460.g

But a distinction is made where the security is defective; for, in that case, the court will not restrain a just creditor from his legal privileges; but then the timber, when cut down, must be applied to ease the estate, and not to the mortgagee's benefit.

Withrington v. Banks, Sel. Ca. Ch. 31.

However, although the mortgagee cannot, to better his security, do any act to encumber the estate mortgaged, which will be valid against the mortgagor after redemption, nor will be justified in committing waste, yet he will be entitled to such expenses as he shall incur in necessary repairs, or other acts for the preservation of the estate mortgaged, and may, certainly, add this to the principal of his debt, and it will carry interest.

3 Atk. 518. See Trimleston v. Hamil, 1 Ball & B. 377, and see post, (F.)||

Thus, if a leasehold estate be mortgaged, and there is no covenant on the part of the mortgagor, that he should procure the lives to be filled up, the mortgagee cannot compel him to do it; but must pay the expense of renewing, and reimburse himself by adding it to the principal of the mortgage, and it shall carry interest. So it was determined in the case of Manlove v. Ball and Bruton, which was a mortgage of a church lease for three lives, two of which died during the time the estate was in mortgage, and were renewed on fines paid by the mortgagee.

3 Atk. 4, Lucam v. Mertins, 1 Wils. 34; Manlove v. Ball et al., 2 Vern. 84. suprȧ; 1 Ball & B. 202.||

A term assigned in trust to attend the inheritance will, in equity, follow all the estates created thereout, and all the encumbrances subsisting upon such inheritance, and is so connected with it, that equity will not suffer it to be severed to the detriment of a bona fide purchaser. Therefore, a mortgagee shall have the benefit of all the interests which the mortgagor had at the time the mortgage was made, unless against an intermediate purchaser without notice; and, consequently, if there be a term in a mortgaged estate held in trust for the mortgagor, when the mortgage of the inheritance is made, the concealment of it will be a fraud upon the mortgagee, and the trustees of such a term assigned to attend the inheritance will, in equity, become trustees for the mortgagee of the inheritance.

Vide 3 Atk. 476, 477; Charlton et al. v. Low et al., 3 P. Wms. 328. See as to the assignment of attendant terms, Sugden, V. & P. 385, (6th ed.) Butler, Co. Lit. 290 5, n. (1), § 13, and Powell, 477 a, note (6th ed.)||

If a mortgage be made of an estate to which the mortgagor has not a good

title, and then he who has the real title conveys to the mortgagor, or his representatives, with a good title; the mortgagee will be entitled, in equity, to the benefit of it; for it will be considered there as a graft upon the old stock, and as arising in consideration of the former title.

As, where houses and lands were demised for a long term, and an assignee of the lease, believing he had a good title, mortgaged it for 1001., afterwards the title turned out to be bad, the estate belonging to another person. Then the real owner of the estate, out of compassion to the assignee, who had built upon it, leased the premises for a long term to trustees for his wife, he being run away. And on a bill filed, the trustees were decreed to make a new mortgage to the mortgagees; the Master of the Rolls saying, that this was a graft on the old stock, all the benefit of it, except the rent reserved, arising in consideration of the former title.

Seabourne v. Seabourne, 2 Vern. 11.

If a mortgagee procures a grant of a new term after the old one be actually expired, yet this will be a trust for the mortgagor, and redeemed with the principal; for it is supposed to have proceeded from having had the original term: and, although there be nothing in fact in having a tenant-right, yet, as such regard is had to it, in the estimation of the world, it will be looked on as the occasion of the lease.

Rakestraw v. Brewer, Sel. Ca. in Ch. 35; Lee v. Vernon, 7 Bro. Par. Ca. 432.]

A, the lessee of land, was in possession under a lease, afterwards he took a mortgage of the same land from B, the lessor; held, that he must be considered as holding under the lease until he has made an election to hold under his subsequent mortgage, or done some act equivalent, and given notice of such election to the lessor.

Newall v. Wright, 3 Mass. 138; Wood v. Felton, 9 Pick. 171.

QUALIFICATION TO VOTE, AND TO SIT IN PARLIAMENT. -By the 7 W. & M. c. 25, it is enacted, "That no person or persons shall be allowed to have any vote in election of members to serve in parliament, for or by reason of any trust estate or mortgage, unless such trustee or mortgagee be in actual possession or receipt of the rents and profits of the same estate, but that the mortgagor, or cestui que trust in possession, shall and may vote for the same, notwithstanding such mortgage or trust."

And by the 9 Ann. c. 5, which requires that knights of the shire should have 600l. per annum, and every other member .300l. per annum, it is enacted, "That no person shall be qualified to sit in the House of Commons, within the meaning of the act, by virtue of any mortgage, whereof the equity of redemption is in any other person, unless the mortgagee shall have been in possession of the mortgaged premises for seven years before the time of his election."

An inhabitant of one town in Connecticut, purchased lands of another and took an absolute deed in fee, of the value of one hundred and ninety dollars he immediately went into possession and resided on the premises about two years, having at the time of taking such deed given back a mortgage to secure one hundred and forty dollars, part of the purchase-money. Held, that he acquired, by such absolute deed and residence, a settlement in the latter town.

Barkamsted v. Farmington, 2 Conn. 600.g

LIABILITY TO COVENANTS. [On the assignment of a term by way of VOL. VII.-8

mortgage, the mortgagee, before actual possession, is not liable to the arrears of rent, and other covenants in the original demise.

Eaton v. Jaques, Doug. 455; Walker v. Reeves, Ibid. 461, note. But the case of Eaton v. Jaques has been expressly overruled; and it is now settled, that the assignee of a lease by way of mortgage is liable on the covenant for payment of rent, though he has never taken actual possession, since the assignment vests in him the whole legal interest. Williams v. Bosanquet, 1 Brod. & B. 238; 3 Moo. 100. A mortgagee, therefore, for safety should only take an underlease of the premises for a term wanting a day or week of the original term; but he should have an express covenant to indemnify against the rent, as he would be liable to a distress. See Powell, 185 a, (6th ed.)||

But, if the mortgagee enters into possession, he becomes liable to all covenants that run with the land, for he takes it cum onere, and enjoying the profits, he must submit to the losses.

Traherne v. Sadleir, 1 Bro. Parl. Ca. 105.

And if a mortgagor, by a mortgage of a term vested in him, divests himself of all interest therein, in the consideration of a court of law, he retains only the equity of redemption, which he must pursue in a court of equity; and therefore, if he join with his mortgagee in a lease, in which the lessee is made to covenant with the mortgagor for rent, repairs, &c., such covenants will be merely collateral to the mortgagee's interest in the land, and the assignee of the mortgagee cannot maintain an action for the breach of them on the statute of 32 H. 8, c. 34.

Webb v. Russell, 3 Term R. 393.

These covenants, therefore, must be considered as covenants in gross, upon which, of course, the mortgagor may maintain an action. And so it was determined on the same instruments, and between some of the same parties, in the case of Stokes against Russell, in the Court of King's Bench. Stokes v. Russell, 3 Term R. 678.

The devisee of the equity of redemption (the legal fee being in a mortgagee) is not liable in covenant as assignee of all the estate, right, title, and interest of the original covenantor.

The Mayor, &c. of Carlisle v. Blamire, 8 East, 487.||

WASTE BY MORTGAGOR.||-If a mortgagor commit waste, whether it be a mortgage in fee or for a term of years, the court, on a bill by the mortgagee to stay waste, will grant an injunction; for they will not suffer a mortgagor to prejudice the encumbrance.

Farrant v. Lovel, 3 Atk. 723; @ Brady v. Waldrons, 2 Johns. Ch. R. 148. {See 8 Ves. J. 105, Hampton v. Hodges; 2 Hen. & Mun. 25, Scott v. Wharton.}

Where the mortgage was of land, wood, and underwood,(a) the Lord Chancellor decided, that it was not waste in the mortgagor to cut the underwood at seasonable times, it being the ordinary fruit of the land, but the mortgagor having become bankrupt, an injunction was granted against cutting the underwood, on the ground that the mortgagee was entitled to have the estate in the plight in which it was at the date of the bankruptcy, and to prove the rest of his debt.

Hampton v. Hodges, 8 Ves. 105. (a) As to what is underwood, see Rex v. Ferrybridge, 1 Barn. & C. 375.

But the mortgagee is entitled to an injunction to restrain the mortgagor from cutting timber, if the land without it is a scanty security.

Humphreys v. Harrison, 1 Jac. & W. 581. A mortgagee of real estate, not in possession, is not entitled to the emblements severed by another person. Toby v. Reed, 9 Conn. 216.

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