New South Wales Consolidated Acts

CONVEYANCING ACT 1919 - SECT 91

91 Indorsements on mortgages

(1) In the case of every mortgage (whether made before or after the commencement of this Act)--

(a) the mortgage debt may be discharged, and

(b) the rate of interest may be increased or reduced, and

(c) the amount secured by the mortgage may be increased or reduced, and

(d) the term or currency of the mortgage may be shortened, extended, or renewed, and

(d1) the provisions of a mortgage may be otherwise varied, omitted or added to, and

(e) the mortgage may be transferred--

by a memorandum indorsed on or annexed to the mortgage, and signed by the persons to be bound thereby and attested by one witness.

(2) Such memorandum may be in such one of the forms of the Fifth Schedule as applicable, or to the effect thereof, and shall in cases (b), (c), (d), (d1) and (e) operate as a deed.

(3)

(a) Every such memorandum of discharge, upon registration, but as from the date of such memorandum, shall, unless a contrary intention appears in the memorandum, vacate the mortgage debt, and shall operate as a deed of conveyance of the estate and interest of the mortgagee of and in the mortgaged property to the person for the time being entitled to the equity of redemption to the uses and for the estates and interests, and subject to the powers and trusts to, for, and subject to which, the equity of redemption at the date of such memorandum stood limited or subject discharged from all moneys secured by the mortgage: Provided that in case there is any subsequent subsisting mortgage on the property at the date of such memorandum, the legal estate in the property under the discharged mortgage shall vest in the person in whom the subsequent mortgage is vested, or in the event of there being more than one such mortgage then in the person who has the prior right to call for a conveyance of such legal estate.

(b) Where the mortgage consists of a mortgage and a further charge or of more than one instrument it shall be sufficient for the purposes of this section if the memorandum refers to all the instruments whereby the mortgage money is secured or to the aggregate amount of the mortgage money thereby secured, and is indorsed on or annexed to one of the mortgage instruments.

(4) Every such memorandum of transfer shall operate as a deed of assignment of the mortgage debt, and as a deed of conveyance of the estate and interest of the mortgagee of and in the mortgaged property, and shall vest the debt and estate and interest in the assignee, together with all the rights, powers, and remedies of the mortgagee expressed or implied in the mortgage.

(5) The mortgagor may require the mortgagee to execute a proper instrument of reconveyance of the mortgaged property instead of executing a memorandum of discharge.

(5A) A memorandum of variation of mortgage may not operate so as to vary the land to which the mortgage relates.

(6) Subject to the memorandum referred to in subsection (1) being in or to the effect of an approved form within the meaning of the Real Property Act 1900 , paragraphs (b), (c), (d) and (d1) of that subsection apply to mortgages under that Act and, upon lodgment of such a memorandum for registration, the Registrar-General shall make such recordings in the Register kept under that Act as may be necessary to give effect to the memorandum.