Hubbard v. Shaw , 94 Mass. 120 ( 1866 )

Chapman, J.

The case now comes before us on the defendant’s exceptions to the master’s report.

1. We think that in this bill to redeem the mortgage, in which the defendant is to be charged for rents and profits, including what he received on the judgment upon the recognizance, he should be credited in account with such reasonable counsel fees as he was obliged to pay in collecting the rents and. profits.

2. The master refers it to the court to decide whether the defendant ought to be charged with the sum of fifty dollars dam- • age done to the land by his tenant Stevens. It does not appear that he improperly rented the land to Stevens; and he had no knowledge of the waste committed by Stevens in digging up the soil. As he was ignorant of the waste, it cannot be regarded as done or permitted by him, and he' is not liable for it.

3. As tenant for years, Stevens had a right to cut wood on the farm for fires and repairs, and this is not to be charged to the defendant. 1 Washburn on Real P¡ op. 99. It is not found that the quantity cut was unreasonable.

4. The plaintiff’s solicitor had not authority, merely as solicitor in the suit, to accept a lease of the land for his client; and, as no other authority is pretended, his offer to pay more rent was not binding on the defendant. Again, the offer was not made till after the defendant had agreed to lease the land to Stevens, and the defendant was under no obligation to break his verbal agreement for the purpose of accepting such an offer.

The exceptions are sustained, and the report is to be recommitted to the master to alter his account so that it shall conform to these principles ; and to add thereto the amount that will be due on the first day of March next, including interest, and deducting rents and profits, and return the amended report as soon as may be, and the cause will then stand for further directions.