47—Powers incident to estate or interest of mortgagee
(1) A mortgagee, where
the mortgage is made by deed, shall, by virtue of this Act, and in the case of
registered land by virtue of the Real Property Act 1886 and of this Act,
have the following powers, to the like extent as if they had been in terms
conferred by the mortgage deed, but not further, namely:
(a) A
power, when the mortgage money has become due, to sell, or to concur with any
other person in selling, the 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, and for a sum payable either in one sum or by
instalments, 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, with power to make such roads, streets, and passages and grant such
easements of right of way or drainage over the same as the circumstances may
require and he thinks fit; and
(b) 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 property which or an estate or interest wherein is
mortgaged, and the premiums paid for any such insurance shall be a charge on
the mortgaged property or estate or interest, in addition to the
mortgage money, and with the same priority, and with interest at the same
rate, as the mortgage money; and
(c) A
power, when the mortgage money has become due, to appoint a receiver of the
income of the mortgaged property, or any part thereof; or, if the mortgaged
property consists of an interest in income, or of a rent charge or an annual
or other periodical sum, a receiver of that property or any part thereof.
(2) The power of sale
aforesaid shall include the following powers is incident thereto, namely:
(a) A
power to impose or reserve or make binding, as far as the law permits, by
covenant, condition, or otherwise, on the unsold part of the mortgaged
property or any part thereof, or on the purchaser and any property sold, any
restriction or reservation with respect to building on or other user of land,
or with respect to mines and minerals, or for the purpose of the more
beneficial working thereof, or with respect to any other thing:
(b) A
power to sell the mortgaged property, or any part thereof, or all or any
mines and minerals apart from the surface—
(i)
With or without a grant or reservation of rights of way,
rights of water, easements, rights and privileges for or connected with
building or other purposes in relation to the property remaining unsold or any
part thereof, or to any property sold; and
(ii)
With or without an exception or reservation of all or any
of the mines and minerals in or under the mortgaged property, and with or
without a grant or reservation of powers of working, wayleaves, or
rights-of-way, rights of water, and drainage and other powers, easements,
rights and privileges for or connected with mining purposes in relation to the
property remaining unsold or any part thereof, or to any property sold; and
(iii)
With or without covenants by the purchaser to expend
money on the land sold.
(3) The provisions of
this Act relating to the foregoing powers, comprised either in this section,
or in any other 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.
(4) This section shall
apply 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.