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lien for unpaid purchase money; and the devisee or legatee, or heir, shall not be entitled to have such sum or sums discharged or satisfied out of any other estate of the testator or intestate, unless (in the case of a testator) he shall within the meaning of the said Act have signified a contrary intention ; and such contrary intention shall not be deemed to be signified by a charge of or direction for payment of debts upon or out of residuary real and personal estate, or residuary real estate.

mortgagee to transfer instead

Power for mort

title deeds.

The Conveyancing Act, 1881,
44 & 45 Vict, c. 41.(a)

IV.-MORTGAGES.
Obligation on

15.(O) (1.) Where a mortgagor is entitled to redeem, he shall,

by virtue of this Act, have power to require the mortgagee, of reconveying. instead of reconveying, and on the terms on which he would be

bound to reconvey, to assign the mortgage debt and convey the mortgaged property to any third person, as the mortgagor directs ; and the mortgagee shall, by virtue of this Act, be bound to assign and convey accordingly.

(2.) This section does not apply in the case of a mortgagee being or having been in possession.

(3.) This section applies to mortgages made either before or after the commencement of this Act, and shall have effect notwithstanding any stipulation to the contrary.

16. (1.) A mortgagor, as long as his right to redeem subsists, saugo neto inspect shall, by virtue of this Act, be entitled from time to time, at

reasonable times, on his request, and at his own cost, and on payment of the mortgagee's costs and expenses in this behalf, to inspect and make copies or abstracts of or extracts from the documents of title relating to the mortgaged property in the custody or power of the mortgagee.

(2.) This section applies only to mortgages made after the commencement of this Act, and shall have effect notwithstanding any stipulation to the coutrary.

17. (1.) A mortgagor seeking to redeem any one mortgage, consolidation of shall, by virtue of this Act, be entitled to do so, without paying mortgages.

any money due under any separate mortgage made by him, or by any person through whom he claims, on property other than that comprised in the mortgage which he seeks to redeem.

(2.) This section applies only if and as far as a contrary intention is not expressed in the mortgage deeds or one of them.

(a) For other sections, see ante, titles “Infants," and “Leases," and post, titles, “Real Property (Miscellaneous Acts)," and "Trusteos, Executors, and Administrators.”

(6) And see 45 & 46 Vict. c. 39, s. 12, post.

Restriction on

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(3.) This section applies only where the mortgages or one of them are or is made after the commencement of this Act.

Leases. 18. (1.) A mortgagor of land while in possession shall, as Leasing powers against every incumbrancer, have, by virtue of this Act, power and of mortgages to make from time to time any such lease of the mortgaged in possession. land, or any part thereof, as is in this section described and authorised.

(2.) A mortgagee of land while in possession shall, as against all prior incumbrancers, if any, and as against the mortgagor, have, by virtue of this Act, power to make from time to time any such lease as aforesaid.

(3.) The leases which this section authorises are-
(i.) An agricultural or occupation lease for any term not

exceeding twenty-one years; and
(ii.) A building lease for any term not exceeding ninety-nine

years. (4.) Every person making a lease under this section may execute and do all assurances and things necessary or proper in that behalf.

(5.) Every such lease shall be made to take effect in possession not later than twelve months after its date.

(6.) Every such lease shall reserve the best rent that can reasonably be obtained, regard being had to the circumstances of the case, but without any fine being taken.

(7.) Every such lease shall contain a covenant by the lessee for payment of the rent, and a condition of re-entry on the rent not being paid within a time therein specified not exceeding thirty days.

(8.) A counterpart of every such lease shall be executed by the lessee and delivered to the lessor, of which execution and delivery the execution of the lease by the lessor shall, in favour of the lessee and all persons deriving title under him, be sufficient evidence.

(9.) Every such building lease shall be made in consideration of the lessee, or some person by whose direction the lease is granted, having erected, or agreeing to erect within not more than five years from the date of the lease, buildings, new or additional, or having improved or repaired buildings, or agreeing to improve or repair buildings within that time, or having executed, or agreeing to execute, within that time, on the land leased, an improvement for or in connection with building purposes.

(10.) In any such building lease a peppercorn rent, or a nominal or other rent less than the rent ultimately payable, may be made payable for the first five years, or any less part of the term.

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(11.) In case of a lease by the mortgagor, he shall, within one month after making the lease, deliver to the mortgagee, or, where there are more than one, to the mortgagee first in priority, a counterpart of the lease duly executed by the lessee ; but the lessee shall not be concerned to see that this provision is complied with.

(12.) A contract to make or accept a lease under this section may be enforced by or against every person on whom the lease if granted would be binding.

(13.) This section applies only if and as far as a contrary intention is not expressed by the mortgagor and mortgagee in the mortgage deed, or otherwise in writing, and shall have effect subject to the terms of the mortgage deed or of any such writing and to the provisions therein contained.

(14.) Nothing in this Act shall prevent the mortgage deed from reserving to or conferring on the mortgagor or the mortgagee, or both, any further or other powers of leasing or having reference to leasing ; and any further or other powers so reserved or conferred shall be exercisable, as far as may be, as if they were conferred by this Act, and with all the like incidents, effects, and consequences, unless a contrary intention is expressed in the mortgage deed.

(15.) Nothing in this Act shall be construed to enable a mortgagor or mortgagee to make a lease for any longer term or on any other conditions than such as could have been granted or imposed by the mortgagor, with the concurrence of all the incumbrancers, if this Act had not been passed.

(16.) This section applies only in case of a mortgage made after the commencement of this Act; but the provisions thereof, or any of them, may, by agreement in writing made after the commencement of this Act, between mortgagor and mortgagee, be applied to a mortgage made before the commencement of this Act, so, nevertheless, that any such agreement shall not prejudicially affect any right or interest of any mortgagee not joining in or adopting the agreement.

(17.) The provisions of this section referring to a lease shall be construed to extend and apply, as far as circumstances admit, to any letting, and to an agreement, whether in writing or not, for leasing or letting.

Sale ; Insurance ; Receiver; Timber.

19. (1.) A mortgagee, where the mortgage is made by deed, interest of mort- shall, by virtue of this Act, have the following powers, to the

like extent as if they had been in terms conferred by the mort-
gage deed, but not further (namely):
(i.) A power, when the mortgage money has become due, to

sell, or to concur with any other person in selling, the

Powers incident

gagee.

mortgaged property, or any part thereof, either subject
to prior charges or not, and either together or in lots, by
public auction or by private contract, subject to such
conditions respecting title, or evidence of title, or other
matter, as he (the mortgagee) thinks fit, with power to
vary any contract for sale, and to buy in at an auction,
or to rescind any contract for sale, and to re-sell, without

being answerable for any loss occasioned thereby; and
(ii.) A power, at any time after the date of the mortgage

deed, to insure and keep insured against loss or damage
by fire any building, or any effects or property of an
insurable nature, whether affixed to the freehold or not,
being or forming part of the mortgaged property, and
the premiums paid for any such insurance shall be a
charge on the mortgaged property, in addition to the
mortgage money, and with the same priority, and
with interest at the same rate, as the mortgage money ;

and
(ii.) A power, when the mortgage money has become due, to

appoint a receiver of the income of the mortgaged

property, or any part thereof; and
(iv.) A power, while the mortgagee is in possession, to cut and

sell timber and other trees ripe for cutting, and not
planted or left standing for shelter or ornament, or to
contract for any such cutting and sale, to be completed
within any time not exceeding twelve months from the

making of the contract.
(2.) The provisions of this Act relating to the foregoing
powers, comprised either in this section or in any subsequent
section regulating the exercise of those powers, may be varied or
extended by the mortgage deed, and, as so varied or extended,
shall, as far as may be, operate in the like manner and with all
the like incidents, effects, and consequences, as if such variations
or extensions were contained in this Act.

(3.) This section applies only if and as far as a contrary intention is not expressed in the mortgage deed, and shall have effect subject to the terms of the mortgage deed and to the provisions therein contained.

(4.) This section applies only where the mortgage deed is executed after the commencement of this Act.

20. A mortgagee shall not exercise the power of sale conferred Regulations as to by this Act unless and until

exercise of power (i.) Notice requiring payment of the mortgage money has been

served on the mortgagor or one of several mortgagors,
and default has been made in payment of the mortgage
money, or of part thereof, for three months after such
service; or

of sale.

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(ii.) Some interest under the mortgage is in arrear and unpaid

for two months after becoming due ; or (iii.) There has been a breach of some provision contained in

the mortgage deed or in this Act, and on the part of the mortgagor, or of some person concurring in making the mortgage, to be observed or performed, other than and besides a covenant for payment of the mortgage money

or interest thereon. Conveyance, 21. (1.) A mortgagee exercising the power of sale conferred receipt , &c., on by this Act shall have power by deed to convey the property sold,

for such estate and interest therein as is the subject of the mortgage, freed from all estates, interests, and rights to which the mortgage has priority, but subject to all estates, interests, and rights which have priority to the mortgage ; except that, in the case of copyhold or customary land, the legal right to admittance shall not pass by a deed under this section, unless the deed is sufficient otherwise by law, or is sufficient by custom, in that behalf.

(2.) Where a conveyance is made in professed exercise of the power of sale conferred by this Act, the title of the purchaser shall not be impeachable on the ground that no case has arisen to authorise the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised; but any person damnified by an unauthorised, or improper, or irregular exercise of the power shall have his remedy in damages against the person exercising the power.

(3.) The money which is received by the mortgagee, arising from the sale, after discharge of prior incumbrances to which the sale is not made subject, if any, or after payment into court under this Act of a sum to meet any prior incumbrance, shall be held by him in trust to be applied by him, first, in payment of all costs, charges, and expenses, properly incurred by him, as incident to the sale or any attempted sale, or otherwise ; and, secondly, in discharge of the mortgage money, interest, and costs, and other money, if any, due under the mortgage; and the residue of the money so received shall be paid to the person entitled to the mortgaged property, or authorised to give receipts for the proceeds of the sale thereof.

(4.) The power of sale conferred by this Act may be exercised by any person for the time being entitled to receive and give a discharge for the mortgage money.

power of sale conferred by this Act shall not affect the right of foreclosure.

(6.) The mortgagee, his executors, administrators, or assigns, shall not be answerable for any involuntary loss happening in or about the exercise or execution of the power of sale conferred by this Act or of any trust connected therewith.

(5.) The

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