Wells v. Van Dyke

Mr. Justice Trunkey

delivered the opinion of the Court,

The ordinary rule in respect to improvements is that the mortgagee in possession will not be allowed for them further than is necessary to keep the premises in proper repair. This rule is not inflexible, for the allowance may be regulated by the justice and equity arising out of the circumstances of eaclr particular cause. Nor will the mortgagee be held to proof of absolute necessity: Harper’s Appeal, 64 Pa. St., 315. While charges for repairs for the purpose of ornament, or the comfort of the mortgagee, or new buildings unnecessary for the preservation of the estate, will not be allowed, expenses for permanent improvements necessary and beneficial for the proper use of'the estate will be allowed in the account: Jones on Mortgages, § 1129. Under the circumstances of this case, the evidence referred to in the second and third specifications was properly received. That the buckwheat refiner, was a substantial improvement, and not a repair of old machinery, was' not enough to exclude its cost as a proper charge. The old machinery may have been of such character as to have become useless in the competition with other mills in tbe neighborhood. Only upon the special circumstances could it be determined whether the defendant ought to be allowed the cost of the refiner. And for like reason the evidence relative to alterations in the sawmill was admissible.

The only remaining question which calls for remark, namely, whether the court erred in entering judgment for the defendant, is raised by the fifth specification. As the verdict settles that the debt was not fully paid, the learned judge of the common pleas was of opinion that the verdict and judgment must be for the defendant, citing as authority Hewitt v. Huling, 11 Pa. St., 27. In that case, it is true, that the jury were instructed to render a verdict for the defendants, unless tho clear profits up to the time of the trial amounted to as much as the debt and interest. The point was not considered in this court, for there was an unconditional verdict for the plaintiff, showing that the jury found that the debt had been paid before the beginning of the suit. In Cole v. Bolard, 22 Pa. St., 431, the plaintiff alleged that the apparent deed was a mortgage ; there was no claim of any payment by rent or profit, and it was said that if the debt was paid any time before trial, though not before the bringing of the suit, the plaintiff was entitled to the verdict for the laud, conditioned that he should pay the costs before taking out execution. There, no point was raised in this court respecting a verdict should the jury find that a part of the mortgage debt was unpaid at the time of the trial. We are not advised of any other case in this state touching or disposing of the question.

Formerly, in some other states, the mortgagor, after payment of the debt, could not recover possession in ejectment from the mortgagee; his remedy was by bill in equity. Even where this rule has been somewhat relaxed, it has been held that the mortgagor cannot maintain ejectment against the mortgagee in possession so long as there is any question whether the mortgage debt has been paid in full, or there remains any question of account to settle between the parties ; in such ease he must resort to a bill to redeem. When the mortgagee has in fact received rents and profits sufficient to satisfy the debt, the mortgagor's remedy is in equity, for only in a court of equity can he compel account and application of the profits to the payment of the debt. The mortgagor seeking to regain possession of the premises must do equity to the mortgagee by paying all that is due on the mortgage. Ordinarily, when the debt has not been fully paid, the form of the judgment is that the plaintiff may redeem, upon paying the amount found due on the mortgage, within a specified time, together with costs, and upon his doing so the defendant shall discharge the mortgage and. deliver up the premises, and that upon default of such payment the bill be dismissed with costs. And the decree should fix a time within which the redemption is to take place. The general rule in regard to costs upon a suit to redeem is that the plaintiff, although successful in the suit, instead of recovering costs, pays them to the defendant. An exception to this rule is made when the defendant sets up an unwarranted defence, or one which wholly fails, in which case he may be compelled to pay costs. If the amount due is in dispute, although the defendant proves to be in error, yet if he had reasonable ground for his view of the case, the costs will be awarded against the plaintiff: Jones on Mort., §§ 673, 674, 1106, 1111.

In Pennsylvania the mortgagor may enforce his equitable rights against the mortgagee in possession, in an action of ejectment. In such case the rents and profits to be accounted for, and the sum due and owing by the mortgagor, will be. determined by the jury: Reitenbaugh v. Ludwick, 31 Pa. St., 131. And the defendant may be charged with the rents and profits of the land up to the date of trial: Stafford v. Wheeler, 93 Id., 462. He shall recover if the debt be paid at any time before the trial, for this would be his right in equity' in a suit to redeem. Where an account is necessaiy to determine whether or not aiything is due on the mortgage debt, in equity he could recover in case it was not wholly paid, upon condition that he pay the balance. In such case why may he not also recover in ejectment? The account is to be settled and the equity to be administered when it turns out that the rents and profits up to the date of trial do not equal the debt, precisely upon equitable principles as if it should happen that no balance was due and owing on the mortgage debt. We are of opinion that the mortgagor is entitled to recover in the former case, as well as in the hitter.

This verdict establishes the amount owing by the plaintiff to the defendant on the mortgage debt, and the time within which it may be paid by the plaintiff with interest and costs ; and although in favor of the defendant for the land in question, it is conditioned that it be set aside and judgment entered for the plaintiff upon said payment within the specified time. Its form is incorrect; but its plain meaning is that judgment in favor of the plaintiff for the land shall be entered, “ upon the plaintiff pa.ying to the defendant $241.44 in six months, with interest thereon and costs.” The Act of March 14th, 1872, provides that no verdict shall be set aside for defectiveness in form. Therefore the parties need not lose the fruits of the long trial which resulted in determining the amount remaining unpaid on the* debt after settlement and application of the rents and profits received by the defendant.

Judgment reversed, and now judgment is entered on the verdict for the plaintiff for the land claimed, upon condition that the plaintiff shall pay to the defendant two hundred and forty-one dollars and forty-four cents Of241.44), with interest from date of the verdict, and. costs, before taking out execution for delivery of possession ; and the plaintiff to be allowed six months from this date within which period she may make the said payment.