Hill v. White ( 1831 )

The Chancellor.

The complainant is unquestionably entitled to redeem. He must pay the principal and interest of the first mortgage, deducting thereout the amount of the rents and profits received, or that might with reasonable care have been received from the property by the first mortgagee while in possession. He must pay the costs incurred in obtaining possession : Davy v. Baker, 2 Atk. 2; 1 Pow. 338; but it is not the practice to allow interest on the costs: 1 Pow. 189; 3 Pow. 921. Nor can any thing be allowed for renting and takingcareof the property. No allowance can be made for any charge of that kind, except for necessary repairs.

Let it be referred to a master, to take an account of the rents and profits from the time Catharine J. Miller took possession, and also an account of the principal, interest and costs due on her mortgage; on payment of which, a proper assignment must be made, under the direction of the master.

As to the costs of this suit, the opinion of the court is, that no costs be allowed to either party as against the other ; and this, on account of the alleged offer to redeem, and the tender of the money before suit brought. If the conduct of the mortgagee in possession had been improper and vexatious, in not receiving, I should have ordered costs paid to the complainant; but as that does not appear to have been the case, I think it equitable that each party pay Iris own costs.