Clark v. Paquette , 67 Vt. 681 ( 1895 )

MUNSON, J.

We are called upon to determine whether the rents and profits received by the orator should be applied in reduction of the incumbrances from which the defendant is to redeem the property. When this case was before ns' upon bill and answer it was remanded with a mandate which permitted the defendant to redeem by paying the amount of the first and second mortgages. 66 Vt. 386. It is clear that the amount contemplated by the mandate was the amount which might be found due upon such an •accounting as the defendant was entitled to. If the defendant is equitably entitled to have the rents and profits applied in reduction of the mortgages, he is not precluded therefrom by the form of the mandate.

The orator took possession of the property at the expiration of the time allowed for redemption under the second ■decree. This decree covered both the second and third mortgages, one of which was prior and one subsequent to the defendant’s deed. If the orator’s possession is. to be treated as that of a purchaser of the equity by virtue of his foreclosure of the third mortgage, he is not liable to account to the defendant for the rents and profits. But if his possession is to be treated as that of a mortgagee by reason of his rights under the second mortgage, then the defendant is ■entitled to the benefit of the rents and profits, as the grantee ■of an interest in the equity which remained in the mortgagor .after the second mortgage was executed.

When one who is already in possession as mortgagee purchases the equity of redemption, he is held to continue in possession as mortgagee notwithstanding his purchase, and to be accountable to a subsequent mortgagee for the rents and profits of his entire occupancy. 2 Jones, Mort., s. 1118; Harrison v. Wise, 24 Conn. 1; 63 Am. Dec. 151. This case differs from the one cited, in that the orator, at the time he took possession, had become the owner -of the equity by his foreclosure of the third mortgage, which was the last conveyance made by the mortgagor. But inasmuch as the orator blended the second and third mortgages in one foreclosure, and entered for the non-payment -of a decree which embraced both, we think his possession must be referred, in determining the rights of the defendant, to the second mortgage.

It is further insisted that, inasmuch as the defendant has no other interest in the premises than a right of way across them, he ought not to be allowed the earnings of the property in aid of a redemption. But no satisfactory ground is suggested on which it can be held that the nature oí the defendant’s interest takes the case out of the general rule governing the rents and profits of redeemable premises. It is said that a mortgagee in possession must account for the rents and profits upon a redemption of the premises by any one interested in them. 2 Jones. Mort., s. 1114. There is nothing in the character of a mortgagee’s possession that suggests the possibility of an exception. He is treated as a bailiff of the mortgagor, and necessarily sustains the same relation to one who holds an interest in the equity by a title derived from the mortgagor.

Decree affirmed and cause remanded.

Ross, C. J., dissenting.