Cazenove v. Cutler , 45 Mass. 246 ( 1842 )

Shaw, C. J.

(After stating that it was the opinion of the court that a payment by a mortgagor of more than is due, for the purpose of preventing a foreclosure, is such a compulsory payment, as entitles him to recover it back in an action for money had and received ; that the plaintiff was not confined to the remedy provided by the statutes of Maine ; and that the action could be maintained in this Commonwealth.) This action must proceed upon the same rules, both legal and equitable, upon which an account ought to be settled upon a bill in equity to redeem. The maxim, that he who seeks equity must do equity, applies to such a case, when tried by a juiy in an action by a mortgagor to recover back money, as before a master to entitle a mortgagor to redeem. The court are of opinion that such a case is not to be left to the jury, as an open question, whether the charges of a mortgagee in possession were reasonable; i. e. whether it was reasonable for the mortgagee to have such services done, and whether they were overcharged or not. What is reasonable, in such case, is a question of law, to be decided upon by the court according to the facts and circumstances to be inquired of and found by the jury.

With more particular reference to the present case, and to the large item paid to Solomon Rice, for his care and custody of the property, the inquiry would be, whether the mortgagees, having taken possession to foreclose, and not using or employing the Salt Works, had incurred this expense upon due care, attention and consideration ; i. e. not heedlessly or carelessly, but on inquiry, with a view to the situation and condition of the property, the capacity of Rice, and the worth of his services ; whether the sum had been actually paid by them, or they had become absolutely liable to pay it — such liability not being dependent on a redemption, or on the event of the mortgagees’ receiving the same of the mortgagor, on redemption; whether such expenses were incurred and paid in good faith, without any collusion or sinister purpose, and with a single view to the care and preservation of the property, and not with a view to other profits and advantages : And the jury should be instructed, that if the mortgagees in possession to foreclose — it being doubtful whether the estate would be redeemed or not — upon due consideration purposely incurred this expense for the care and preservation of the mortgaged estate, and actually paid, or became bound to pay, the sums charged for such services, and paid the same, in good faith, for the care, custody and preservation of the property, it was a reasonable charge and should be allowed, although the jury should be of opinion that such services were not necessary, or that they were overcharged ; and if no more had been charged in the account, the mortgagor was bound to reimburse it, on redemption,' and that the plaintiff could not recover it back in this action.

As it is often a question of difficulty, in such cases, what expenses shall be incurred for the benefit, protection and preservation of the mortgaged property, in which both the mortgagor and mortgagee have an interest — if the mortgagee in possession, and the mortgagor or his assignee, having the immediate right to redeem, consent and agree to any particular measures in this respect, and the expenses attending them, such consent being given with a knowledge, or the means of knowledge, of the facts and circumstances ; the expenses thus incurred must be reimbursed by the mortgagor or his assignee holding the equity, on redemption. Such expense must be considered, in point of law, a reasonable and necessary expense. Conformably to this principle, if Frederick Hobbs was the agent of the holder of the equity of redemption, as it appears by the evidence that he was, at the time that Rice was employed, and to the 31st of August following, at which time the equity of redemption was assigned by Chadbourne and others, trustees, to Eliphalet Hale ; the consent of Hobbs to the employment of Rice, and to the rate at which he was employed by the mortgagees, must be deemed in law to be the consent of the holder of the equity ; and during that period, the employment of Rice must be considered as sanctioned by both parties, and the expense, thus incurred, a reasonable and necessary expense.

If such consent was given by Hobbs, whilst acting as agent of the mortgagor or his assigns, to the employment of Rice, at the salary agreed on, as useful and beneficial for the protection and preservation of the estate, though it is not conclusive, after he ceased to be such agent, yet it is competent and strong evi dence of the reasonableness and propriety of the measure after-wards, and after the assignment; the circumstances of the property remaining the same.

The action for money had and received is an equitable action; "t is a substitute for an account before a master on a bill in equity to redeem, and is to be tried and decided upon the same legal and equitable principles which govern the taking of such an account.

Verdict set aside, and a new trial granted.

f At the second trial, a verdict was returned for the defendants.!