Section 123 Property and Conveyancing Law of the Western Region of Nigeria 1959

Section 123 of the Property and Conveyancing Law of the Western Region of Nigeria 1959 is about Powers incident to estate or interest of mortgagee. It provides as follows:

(1) A mortgagee, where the mortgage is made by deed, shall, by virtue of this
Law, have the following powers, to the like extent as if they had been in terms
conferred by the mortgage 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 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 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 resell, 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 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

(iii) 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 an annual or other periodical sum, a
receiver of tha, 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) Where the mortgage deed is executed after the commencement of this Law the power of sale aforesaid includes the following powers as incident thereto (namely):
(i) 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 any other thing;
(ii) A power to sell the mortgaged property, or any part thereof:

(a) 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 in mortgage or any part thereof, or to any property sold; and
(b) With or without covenants by the purchaser to expend money on the land sold.

(3) The provisions of this Law 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 Law.

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

(5) Save as otherwise provided, this section applies where the mortgage deed is
executed after the thirty-first day of December, eighteen hundred and ninety nine.

(6) The power of sale conferred by this section includes such power of selling the
estate in fee simple or any leasehold reversion as is conferred by the provisions of this Law relating to the realisation of mortgagee.