Holmes v. French , 1879 Me. LEXIS 178 ( 1879 )

Libbey, J.

This is a writ of entry on a mortgage. A motion was made by the plaintiff for the conditional judgment as of mortgage, and it was ordered. On a hearing for the assessment of the amount due on the mortgage the presiding judge ruled as follows :

“I find upon the testimony that this suit is brought and prosecuted for George F. Holmes, the purchaser and owner of the note and mortgage; and that he has recovered judgment as appears by the copy of the judgment, at the superior court, in his favor, against the mortgagor, and that the conditional judgment in the case should be rendered for the amount of the judgment in the superior court, including costs as well as debt.” To this ruling exception was taken by the defendant.

We think the ruling correct. The purchaser and owner of the mortgage debt is the equitable owner and assignee of the mortgage. The mortgage is incident and collateral to the debt secured by it, and an assignment of the debt carries with it, in equity, the mortgage. This rule is too well settled to require the citation of authorities in its support.

When the mortgage is not legally assigned with the debt, the assignee of the debt has a right to use the name of the mortgagee in a suit to enforce the mortgage ; and he is no t required to resort to the court in equity for that purpose unless the mortgagee refuses to permit his name to be used.

In such suit the same rules of law are applicable to the assessment of the amount of the conditional judgment that would be applicable if the debt and mortgage were owned by the mortgagee.

It is now the settled law of this state, that, in assessing the amount due on the mortgage as the amount of the conditional judgment, the costs in a suit to enforce payment of the mortgage debt are to be included, as well as the costs in the action on the mortgage. Hurd v. Coleman, 42 Maine, 182. Rawson v. Hall, 56 Maine, 142. A refusal by the mortgagor to pay the debt secured by the mortgage, gives the mortgagee the right to maintain an action to enforce it. The costs of the suit become an incident to the debt, and, when judgment is rendered, inseparable from it. To redeem, the mortgagor must pay, or tender the amount of the mortgage debt. After judgment in the action to enforce payment of the debt, to pay or satisfy the debt the cost must be paid. A tender of the amount of the debt without costs would not be a good tender.

It is urged on the part of the defendant that this rule works a great hardship upon the mortgagor. The answer is that it is the legal result of his refusal to pay as ho agreed. He has the power of preventing the hardship by paying his debt, without putting the mortgagee to his action to enforce it.

Exceptions overruled,.

Appleton, C. J., Walton, Peters and Symonds, JJ., concurred. Yirg-in, J., did not concur.