Lamson v. Drake , 105 Mass. 564 ( 1870 )

Wells, J.

This bill presents a diversity of aspects.

1. As against the mortgagee, the plaintiff is not entitled to postpone payment of the principal of the mortgage debt until the expiration of the life tenancy ; nor to hold the premises by paying the interest only. The mortgagee is entitled to the possession and entire income of the estate until the whole amount due is paid, whatever may be the rights between the life tenant and the reversioner.

2. As against the reversioner, the plaintiff is. not entitled to throw the whole burden of the mortgage debt upon the reversion, either by being put into possession and allowed to hold the land by paying interest only, or by taking an assignment of the mortgage, and keeping it outstanding during the continuance of the life tenancy, There is nothing in the mortgage to make it, or to indicate that it was intended as a permanent charge upon the land.

3. Neither the pleadings nor the proofs are such as to present the question, or enable the court to determine, whether, as between the life tenant and the reversioner, there ought to be an apportionment of the mortgage debt, and contribution towards ’ its payment by the reversioner.

4. The bill can be maintained, if at all, only as a bill to redeem simply.

We think it may be so maintained. The mortgage, and also the plaintiff’s title and right to redeem, are sufficiently set forth. Although the averments, as well as the offers and prayers of the bill, are mostly directed to other modes of relief sought, it is averred that the plaintiff is ready.and offers to pay the full amount due on the mortgage, upon an assignment thereof to himself, “ or in such other way and upon such other terms ” as to the court shall seem meet. A previous tender, or offer to pay the amount due upon the mortgage, is not essential to the maintenance of the suit. It only affects the recovery of costs. Gen. Sts. o. 140, § 21. The bill does not pray for an account, but it does allege that an account had been previously demanded, and .prays for full answers to the bill; and the defendant does not demur, but answers, among other things, that “ if the plaintiff shall prove his alleged ownership and right to account, this defendant is ready and willing to render such account as may be directed by the court.” The reference to the master to state the account was therefore proper.

From the agreement of reference, and the recital of the order in the master’s report, it is apparent that the order of reference contemplated a hearing before him upon all questions involved in the case; but it does not appear that he was authorized to find the facts conclusively ; and in the absence of the order itself we cannot presume that it did so authorize him. The recital of the order by the master, and the report of the evidence by him, indicates the contrary. But in either ease those findings are open to revision by the court, where the evidence upon which they are made is reported by the master.

It is too late at this stage of the case to object to the irregularity in the mode of returning the master’s report to the court. It should have been done by motion, before filing exceptions to the substance of the report.

Upon the report and the accompanying evidence, it is manifest that the plaintiff is entitled to redeem. In this suit, he can have a decree for redemption only upon condition of paying the whole amount due upon the mortgage, and is not entitled to have an assignment to himself.

The master reports the amount due the mortgagee, charging him with actual receipts only; and also the amount due if he were to be charged with the full annual value of the property or all that with due care and diligence he might have received. The master finds that the defendant took possession under his mortgage December 5, 1867, and is therefore chargeable from that time with the full rentable value of the property, But we do not see that this finding is supported by the evidence. It appears that on that day Joel Lancy, being then in possession, or at least not then dispossessed by the plaintiff’s writ of possession, executed a deed of the land to the defendant, in which the heirs of Ruth W. Lancy, deceased, joined, to convey their reversionary interest. Joel Lancy, or some of his children, remained in the occupation afterwards, as before. The defendant made no formal entry to foreclose his mortgage. If he assumed control of the property at that time, we think it is to be presumed that he did so under his deed rather than under his mortgage. But this possession was terminated by the service of the plaintiff’s writ of possession, February 5,1868. The plaintiff was then put in possession as against Joel Lancy and those holding his title; but fuff and actual possession was withheld from him by the defendant, claiming to hold it as mortgagee. From that time, the defendant must be regarded as holding the premises under his mortgage, and accountable for the income.

He chose to use his mortgage to prevent the plaintiff from, ejecting the former occupants. We see no reason, therefore, against adopting the conclusion of the master, that he is chargeable with the full amount of the fair rentable value of the property. The amount found due by him upon this basis is the amount to be paid upon redemption, adding thereto the difference, about seven dollars, on account of the two months from December 5, 1867, to February 5, 1868.

Under the Gen. Sts. c. 140, § 21, the defendant is entitled to «cover his costs. Decree accordingly.