interest on dcfizat.—It would seem that a covenant would be void whic requires interest to be paid at a higher rate than that primarily payable under a deed of mortgage in case the interest is not punctually paid on a cettain date. Practically the same result is attained, however, by primarily fixing the interest at the higher rate, and providing that in case it should be punctually paid on the agreed date the lower rate will be received in full satisfaction. This latter method is perfectly legal, and is frequently adopted when it is desired to secure payment of the interest as promptly as possible. The title-dceds.—Not only 8:...-.11c1 a mortgagee be careful before completing the mortgage to see that the mortgagor's title to the property is perfectly clear, but he should always have his mortgage in the shape of a deed, and should take all the title-deeds into his own posses sion and control. If the mortgage is not by deed he will be only an equitable mortgagee. If he leaves the title-deeds in the possession of the mortgagor and the latter hands them over, with a legal mortgage, to another mortgagee who has made an advance without notice of the circumstances, then his security, generally speaking, will be postponed to that held by the second mortgagee. Sometimes the necessity of a particular Cabe may require the title-deeds to be left with the mortgagor. IIere the deed which filially vested the property on the mortgagor should be indorsed with a memorandum of the execution of the mortgage, for such a memorandum will constitute a notice of the mortgage to any one subsequently dealina with the property. As to mortgages of policies of insurance 8ee LIFE ASSYJRANCE.' belonging to a corporate body, ecclesiastical, sole or aggregate, such for example as an incorporated company, a charity, a college, or a church, are said to lie in mortinain, or in mortua manu, that is, in a dead hand. The explanation of this term is given by Coke, who writes that "the lands were said to come to dead hands as to their lords, for that by alienation in mortmain they lost wholly their escheats, and in effect their knights' services for the defence of the realm, wards, marriages, reliefs, and the like, and therefore was called a dead hand, for that a dead hand yieldeth no service." For a full understanding of this explanation it is necessary to have some knowledge of the feudal system, and to recognise that a corporation has perpetual continuance and succession. Because of this essential characteristic of a corporation the lord lost the profits on his lands which, under the feudal system, he derived either from the services of the tenant, while alive, or from the death of the tenant and other circumstances. As a consequence of the original legislation on the subject being directed against the holding of land by religious corporations, the impression has generally prevailed that the laws of mortmain were particularly directed against religious bodies. This, however, is not entirely correct, for religious corporations were then attacked only because at that time they were the principal corporations that desired to hold land. It was not long before legislation made it clear that all corporations were within the statutes of mortmain. So extensive and definite was the operation of these statutes that it required special legislation to exempt joint-stock companies corporated under the Companies Acts ; and in the case of companies formed for the purpose of promoting art, science, religion, charity, or any other like object not involving the acquisition of gain, this exemption was only a limited one. In view of this exemption in favour of joint-stock companies the subject of mortmain is once more of interest mainly from the point of view of charitable uses. In this connection it will now be considered with special reference to the Mortmain Acts, 1888 and 1891, v hich contain the statute law of mortmain.
Charitable uses.—Generally speaking, every assurance of land for the benefit of a charity, and every assurance of personal estate to be laid out in the purchase of land for a like benefit, must be made in accordance with certain statutory requirements, and unless so made they are void. The assurance must be made to take effect in possession for the charity for the benefit of which it is made, immediately upon the making thereof. And, except as will be presently mentioned, the assurance must be without any power of revocation, reservation, condition, or provision for the benefit of the assuror or of any person claiming under him. But the assurance, or any
instrument forming part of the same transaction, may contain all or any of the following provisions, provided they reserve the same benefits to persons claiming under the assuror himself, namely—(1) The grant or reservation of a peppercorn or other nominal rent ; (2) the grant or reservation of mines or minerals; (3) the grant or reservation of any easement ; (4) covenants or provisions as to the erection, repair, position, or description of buildings, the formation or repair of streets or roads, drainage or nuisances, and covenants or provisions of the like nature for the use and enjoyment as well of the land comprised in the assurance as of any other adjacent or neighbouring land ; (5) a right of entry on nonpayment of any such rent or on breach of any such covenant or provision ; (6) any stipulations of the like nature for the benefit of the assuror or of any person claiming under him. If the assurance is made in good faith on a sale for full and valuable consideration, that consideration may consist wholly or partly of a rent, rent charge, or other annual payment reserved or made payable to the vendor, or any other person, with or without a right of re-entry for nonpayment thereof. If the assurance is of land other than copyhold, or is of personal estate other than stock in the public funds, it must be made by a deed executed in the presence of at least two witnesses. If the assurance is of land, or of personal estate not stock in the public funds, then, unless it is made in good faith for full and valuable consideration, it must be made at least twelve months before the death of the assuror, including in those twelve months the days of the making of the assurance and of the death. If the assurance is of stock in the public funds, then, unless it is made in good faith for full and valuable consideration, it must be made by transfer thereof in the public books kept for the transfer of stock at least six months before the death of the assuror, including in those six months the days of the transfer and of the death. If the assurance is of land, or of personal estate other than stock in the public funds, it must, within six months after execution, be enrolled in the Central Office of the Supreme Court of Judicature, unless in the case of an assurance of land for the benefit of charitable uses those uses are declared by a separate instrument, in which case that separate instrument must be so enrolled within six months after the making of the assurance of the land.
Where an instrument required to be enrolled is not duly enrolled within the requisite time, the High Court, or the officer controlling the enrolment of deeds in the Central Office, may on formal application allow the instru ment to be enrolled. But the applicant must first satisfy him that the i omission to enrol in proper time arose from ignorance or inadvertence, or through the destruction or loss of the instrument by time or accident, and that the assurance required enrolment in order to be valid. Thereupon such subsequent enrolment will render the assurance valid, provided, however, that the assurance was made in good faith and for full and valuable consideration, and was made to take effect in possession immediately from the making thereof without any power of revocation, reservation, condition, or pro vision, except such as is authorised as above-mentioned, and if at the time of the application possession or enjoyment was held under the assurance. But if at the time of the application any proceeding for setting aside the assurance, or for asserting any right founded on the invalidity of the assurance, is pending, or any decree or judgment founded on such validity has been then obtained, the enrolment will not give any validity to the assurance. Where the instrument omitted to be enrolled in proper time has been destroyed or lost by time or accident, and the trusts thereof sufficiently appear by a copy or abstract thereof or some subsequent instrument, such copy, abstract, or subsequent instrument may be enrolled as if it were the instrument destroyed or lost. An application for enrolment under these latter circumstances may be made by any trustee, governor, director, or manager of, or other person entitled to act in the management of, or other wise interested in, any charity or charitable trust intended to be benefited by the uses declared by the instrument to be enrolled.