I. (X) Allowances to Mortgagee. THE court will not allow a mortgagee more than his principal and intereft, notwithstanding the mortgagor has agreed he fhall be paid for his trouble in receiving the rents. 2 Atk. 120. 1740. French v. Barron. 2. Where a mortgagor of a leasehold eftate has not covenanted that he will procure the lives to be filled up, the mortgagee may do it, and on adding the expence of renewal to the principal of the mortgage it fhall carry intereft. 3 Atk. 4. 1743. Lacon v. Mertins. 3. Mortgagee may add to the principal of his debt a fum expended in fupport of the mortgagor's title, where it is impeached, and it fhall carry interest. 3 Atk. 518. 1747. Godfrey v. Watfon. 4. A mortgagee fhall not be allowed for his trouble in receiving the rents of the eftate himself, but if the estate lies at fuch a distance as obliges him to employ a bailiff to receive them, what he paid to the bailiff fhall be allowed. Ibid. 5. Bill to redeem a mortgage. It was referred to the Mafter to take the ufual accounts. The principal money lent, carried 5 per cent. intereft. The mortgagee being in poffession, had advanced money for fines on renewals of leafes, under which the premises were held. Upon thefe fums the Mafter allowed only 4 per cent. intereft. On exceptions, the court faid, that intereft upon the advances must be regulated by the intereft payable upon the money originally lent. 2 Anf. 551 35 Geo. 3. Woolley v. Drag. See 2 Atk. 330. Thornhill v. Evans. 6. A mortgagee had alfo a bond, on which the intereft due exceeded the penalty; the mortgagor conveyed the equity of redemption for the ufe of his creditors, paying this bond firft, nothing beyond the penalty can be allowed. 2 Anft. 525. 33 G. 3. Lloyd v. Hatchett. (X. 3) Interest upon Intereft. Or how much, i. AN 2. A. made a mortgage to B. for 17697. payable by five equal. payments within the fpace of five years, with intereft at 5 per cent. But the mortgagor covenanted, that if the money was not paid at thofe times, or within three months after, he would, for every fum fo paid pay the mortgagee intereft after the rate of 8 per cent. until actual payment. The money was not paid according to the terms of the deed, and therefore the mortgagee filed a bill to foreclofe. The court decreed an account of the principal money and intereft at 5 per cent. only; but on appeal this decree was reverfed, and the mortgagor was ordered to be charged at 8 per cent. 15 Vin. 474. 15 Vin. 474. ISVin. 475. cent. from the end of three months after each payment became due. 3 Bro. Par. Ca. 68. 1725. Burton and others v. Hattery. 3. A mortgagee, where the mortgage was only at four and a half per cent. compelled the mortgagor to turn the intereft into principal at five per cent. at the end of every fix months, and at the time the mortgage was paid off infifted on an advance of fix months intereft, over and above the intereft which was due; the bill was brought for relief against the mortgagee, and to fet afide the grant to the defendant of the place of fteward to a manor of the plaintiff's, as obtained by fraud. Lord Hardwicke Chancellor, relieved the plaintiff both in refpect of the transactions relating to the mortgage, and also in regard to the grant to the stewardship. 2 Atk. 330. 1742. Thornhill v. Evans. 4. An agreement to turn intereft into principal must be done fairly, and on the advance of fresh money. Ibid. 5. The court will not fuffer a counsel to maintain an action for fees, or if he happen to be a mortgagee, to infift on more than legal intereft under pretence of gratuity for buliness done in the way of counfel. Ibid. 6. Though intereft be in arrear when the mortgage is paid off, a mortgagee shall not have intereft for that interest. Ibid. 7. If a mortgage be drawn for 5 per cent. and a mortgagee take 6, it would be void on the word take in the ftat. 12 Ann. 3 Atk. 154. 1744. Adlington v. Cann. 8. The defendant, the affignee of two judgments, which were prior in point of time to the plaintiff's mortgage, is entitled to have intereft on the whole money, the accumulated fum which he paid for thofe two judgments. 3 Atk. 270. 1745. Afhenhurst v. James. 9. Where a mortgage is affigned with the concurrence of the mortgagor, the intereft paid to the mortgagee by the affignee fhall be taken as principal and carry intereft; otherwise if affigned without the mortgagor's confent. Ibid. 10. A judgment creditor in poffeffion of the estate, and prior to a mortgage affigns his judgment; the affignee's poffeffion is from the date of the affignment only, but the rents he has received, fhall be deducted out of what fhall be reported due to him for principal, intereft, and cofts. Ibid. II Where a mortgagee has tacked a judgment to his mortgage he fhall not be confined to the penalty of the judgment, but is entitled to intereft upon the debt fecured by judgment, though it exceeds the penalty. 3 Atk. 518. 1747. Godfrey v. Watfon. 12. Prior incumbrancer cannot turn the interest into principal to the prejudice of a fubfequent incumbrancer after notice. Ambl. 612. June 1763. Digby v. Craggs. (Y) Foreclosure. In what Cafes, and of what, &c. 1. THE father of Mr. Lutwich the counsel, had a mortgage in fee on Sir Wm. Perkin's estate, who was attainted, the fon of Mr. Lutwich brought his bill to foreclofe, and made the Attorney 7 orney General a party: the court would not decree a foreclosure 3. Bill of foreclofure against tenant for life and firft tenant in tail; the time for redemption after feveral enlargements elapfed, and the tenant in tail releafed; held, the remainder-man was bound by the foreclofure and releafe. Amb. 564. 1769. Reynholdfon v. Perkins. 4. Foreclofure of the first tenant in tail will bind the remainder-man. Ibid. 5. Mortgagee, when the perfonal eftate is infufficient, may pray a fale of the mortgaged premifes in the first inftance, where the heir and the perfonal reprefentative are the fame perfon. 2 Bro. Ch. Rep. 155. 1787. Daniel v. Skipwith. 6. A trustee laid out money of different perfons on a mortgage, foreclofure may be by one celui que truft as to his fhare. 3 Vef. jun. 560. 1797. Montgomerie v. Marquis of Bath. 7. Mortgagee having permitted the tenant for life to run in arrear for the intereft, purchases the eftate for life, and takes poffeffion under that purchase: he is bound to apply the furplus rents and profits beyond the current interest in discharge of the arrear; and in the account under the foreclofure was charged accordingly. 5 Vef. jun. 99. 1799. Lord Penrhyn v. Hughes. 8. Mortgagee cannot be compelled to take poffeffion, but may foreclofe. Ibid. (Z) Foreclosure. Opened in what Cases. MOTION for further time to redeem a mortgage, and that it should stand as a fecurity only for what was bonâ fide advanced, but forfeited as to what was won at play. Per Lord Hardwicke Chancellor. As Mr. Fleetwood in a former caufe, where he might have done it, did not infift on a redemption, the foreclofures could not regularly be kept open, but on the whole circumstances his lordship allowed three months. 2 Atk. 467. 1742. Fleetwood v. Janjen. 15Vin. 477. (C. a) Pleadings in Law and Equity relating to 15Vin. 47% Lands mortgaged. 1. Fa term is affigned by way of mortgage, with a claufe of re VOL. V. 2. The 2. The plaintiff as mortgagee got poffeffion of the eftate, fued at law on the covenant for non-payment, and brought this bill to foreclofe; this is regular, and the court will not stop the proceedings at law unless the defendant brings the money into court. Rees v. Parkinfon, 2 Anftruther's Rep. 497. 3. On a bill to redeem, the mortgagee cannot object that the bill does not state a valid legal conveyance to him. Robert v. Clayton, 3 lbid. 715. 4. Where a mortgagee brings an ejectment to get poffeffion, and the mortgagor moves to stay proceedings on payment of what is due and costs; if the mortgagee gives notice of other demands, as caufe against the order, he must specify the nature and amount of fuch demands. Goodtitle ex dem. Leon v. Lansdown. 3 Ibid. 937. 5. The mortgagee of a fhip cannot maintain an action for freight against a third perfon before he takes poffeffion. Chinnery v. Blackburne, 1 H. Bl. 117. (n). 6. A mortgagor fhall never be permitted to difpute the title of his mortgagee. Per Lord Mansfield. Goodtitle v. Bailey, 2 Comyns, 601. 7. If a road act (9 G. 3. c. 89.) require notice in writing to be given to mortgagées of lands wanted, in order to compel them to affign their intereft, it is not fufficient in an order of feffions to fay that due notice was given, but it ought to be stated to have been given in writing. Rex v. Croke, 1 Comyns, 30. 8. Such defective notice would not be cured by the appearance of the party. Ibid. 9. Ejectment will lie by a mortgagee againft a tenant under a leafe from the mortgagor fubfequent to the mortgage without notice to quit. Keech v. Hall, 1 Dougl. 21. But if there is a tenant from year to year, and the landlord mortgages preceding the year, the tenant is entitled to fix months notice to quit from the mortgagee. Ibid. 21. (n). 10. A tenant, under a leafe from the mortgagor prior to the mortgage, fhall not fet it up against the mortgagee in ejectment, if he has notice that the mortgagee only means to compel him to attorn. White v. Hawkins, Ibid. 23. (n). 11. In the cafe of Head v. Egerton it was faid by the Lord Chancellor," That in the defendant's pleading of a mortgage or purchase he ought to fhew, that the vendor or mortgagor being, or pretending to be, feifed in fee of the premifes, did make fuch conveyance or mortgage, &c., otherwife the perfon undertaking to fell or mortgage may be a mere ftranger and have no intereft in the premises, though he takes upon him to fell or mortgage them." 3 P. Wms. 281. 12. In ejectment by a mortgagee, for the recovery of the poffion of the mortgaged premifes, or in debt on bond conditioned for the payment of the mortgage money, or performance of covenants in the mortgage deed, where no fuit in equity is depending for a foreclosure or redemption, it is enacted by the ftat. 7 G. 2. c. 20. f. 1. that "if the perfon having a right to redeem fhall, at any time pending the action, pay to the mortgagee, or in cafe of his refufal, bring into court, all the principal monies and interest due on the mortgage, and alfo cofts to be computed by the court, or proper officer appointed for that purpose, the fame fhall be deemed and taken to be in full fatisfaction and difcharge of the mortage, and the court fhall discharge the mortgagor of and from the fame accordingly." Upon this ftatute the proceedings in ejectment on a mortgage may be stayed by the mortgagor, or his affignee of the equity of redemption, on payment of the principal, intereft, and costs, without paying off a bond debt due to the mortgagee. Archer v. Snatt, 2 Str. 1107. Andr. 341. S. C. 13. And if there be any doubt as to the amount of what is due, the court will refer it to the Mafter who taxes the cofts, and if the debt and cofts are not paid, the plaintiff must proceed in the action, and cannot have an attachment. 2 Stra. 1220. 14. But the court will not ftay proceedings in an ejectment brought by a mortgagee against a mortgagor on payment of the principal, intereft, and cofts, if the latter has agreed to convey the equity of redemption to the mortgagee. Goodtitle dem. Tayfum v. Pope, 7 Term Rep. 185. But vide Skinner v. Stacy, i Wilf. 80. For more of Mortgage in general, fee Fraud, Incumbrances, and other proper titles. Mortmain. (B) What is Mortmain. 1.DEVISE to charitable ufes under a will in 1734, the teftator lived till July 1736, a month after the new ftat. of mortmain took place, and then dies without revoking his will. It was referred by the court of Chancery to the judges for their opinion, whether this was a good difpofition to charitable ufes; and all of them, except Mr. Juftice Denton, who was ill, certified that the devise to these uses was good in law, notwithstanding the act; and thereupon the Lord Chancellor declared the will fhould be eftablished, and the trufts thereof carried into execution. 36. 1740. Afhburnham v. Bradshaw, 1 Vef. 33. Attorney-General v. Lloyd, S. P. 1 Vef. 178. and 186. Willet v. Sandford, S. P. Ambl. 550. Attorney-General v. Downing. 2 Atk. 2. The owner of land charged with an annuity for the payment of a schoolmafter, will not be excufed from the payment thereof on account of there being no fchoolmafter for fix years. 2 Atk. 238. 1741. Aylet v. Dodd. 15 Vin 48 |