Foreclosure.

New enactment.

(m) Coote on Mortgages, book 5, ch. 4.

(n) Nanny v. Edwards, 4 Russ.

124; Eyre v. Hanson, 2 Beav. 478.

(o) Stat. 7 Geo. II. c. 20, s. 2.

In addition to the remedy by foreclosure, which, it will be perceived, involves the necessity of a suit in Chancery, a more simple and less expensive remedy is now usually provided in mortgage transactions; this is nothing more than a power given by the mortgage deed to the mortgagee, without further authority, to sell the premises, in case default should be made in payment. When such a power is exercised, the mortgagee, having the whole estate in fee simple at law, is of course able to convey the same estate to the purchaser; and, as this remedy would be ineffectual, if the concurrence of the mortgagor were necessary, it has been decided that his concurrence cannot be required by the purchaser (r). The mortgagee, therefore, is at any time able to sell; but, having sold, he has no further right to the money produced by the sale than he had to the lands before they were sold. He is at liberty to retain to himself his principal, interest and costs; and, having done this, the surplus, if any, must be paid over to the mortgagor. And, by a recent act of parliament (s), a power of sale, a power to insure against fire, and a power to require the appointment of a receiver of the rents, or in default to appoint any person as such receiver, have been rendered incident to every mortgage or charge by deed affecting any hereditaments of any tenure. These powers, however, do not arise until after the expiration of one year frorn the time when the principal money shall have become payable according to the terms of the deed, or after any interest on such principal money shall have been in arrear for six months, or after any omission to pay any premium on any insurance, which by the terms of the deed ought to be paid by the person entitled to the property subject to the charge (t). And no sale is to be made until after six months' notice in writing (u). But none of these powers are to be exercisable, if it be declared in the mortgage deed that they shall not take effect; and where there is no such declaration, then if any variations or limitations of any of the powers are contained in the deed, such powers shall be exercisable only subject to such variations or limitations (v).

County Courts.

power of sale.

The mortgagor's concurrence cannot be required.

New enactment.

Statutory powers of sale, etc.

(p) Stat. 15 & 16 Vict. c. 86, s. 48; Hurst v. Hurst, 16 Beav. 374; Newman v. Selfe, 33 Beav. 522.

(q) Stat. 28 & 29 Vict. c. 99, amended by stat. 30 & 31 Vict, c. 142.

(r) Carder v. Morgan, 18 Ves. 314; Clay v. Sharpe, Sugd. Vend. & Pur. Appendix, No. XIII. p. 1096, 11th ed.

(s) Stat. 23 & 24 Vict. c. 145, part 2.

If, after the day fixed for the payment of the money is passed, the mortgagor should wish to pay off the mortgage, he must give to the mortgagee six calendar months' previous notice in writing of his intention so to do, and must then punctually pay or tender the money at the expiration of the notice (w); for if the money should not be then ready to be paid, the mortgagee will be entitled to fresh notice; as it is only reasonable that he should have time afforded him to look out for a fresh security for his money.

Mortgages of freehold lands are sometimes made for long terms, such as 1,000 years. But this is not now often the case, as the fee simple is more valuable, and therefore preferred as a security. Mortgages for long terms, when they occur, are usually made by trustees, in whom the terms have been vested in trust to raise, by mortgage, money for the portions of the younger children of a family, or other similar purposes. The reasons for vesting such terms in trustees for these purposes were explained in the last chapter (x).

Mortgagor must give six calendar months' notice of intention to repay.

Mortgages for long terms of years.

(t) Stat. 23 & 24 Viet. c. 145, s. 11. (u) Sect. 13.

(v) Sect, 32, See ante, p. 295. (w) Shrapnell . Blake, 2 Eq. Ca. Abr. 603, pl. 34.

Copyhold, as well as freehold lands, may be the subjects of mortgage. The purchase of copyholds, it will be remembered, is effected by a surrender of the lands from the vendor into the hands of the lord of the manor, to the use of the purchaser, followed by the admittance of the latter as tenant to the lord (y). The mortgage of copyholds is effected by surrender, in a similar manner, from the mortgagor to the use of the mortgagee and his heirs, subject to a condition, that on payment by the mortgagor to the mortgagee of the money lent, together with interest, on a given day, the surrender shall be void. If the money should be duly paid on the day fixed, the surrender will be void accordingly, and the mortgagor will continue entitled to his old estate; but if the money should not be duly paid on that day, the mortgagee will then acquire at law an absolute right to be admitted to the customary estate which was surrendered to him; subject nevertheless to the equitable right of the mortgagor, confining the actual benefit derived by the former to his principal money, interest and costs. The mortgagee, however, is seldom admitted, unless he should wish to enforce his security, contenting himself with the right to admittance conferred upon him by the surrender; and, if the money should be paid off, all that will then be necessary will be to procure the steward to insert on the court rolls a memorandum of acknowledgment, by the mortgagee, of satisfaction of the principal money and interest secured by the surrender (z). If the mortgagee should have been admitted tenant, he must of course, on repayment, surrender to the use of the mortgagor, who will then be re-admitted.

Mortgage of copyholds.

(x) See ante, p. 393.

(y) Ante, pp. 358, 360..