Cary v. Whiting, 118 Mass. 363

Cary v. Whiting

118 Mass. 363 | Mass. | 1875

Colt, J.

The principal question in this case is whether, by a true construction of the condition of the mortgage, as applied to the relations of the parties under the lease previously given by the tenant to the demandants, with the indorsements thereon, there was a breach of that condition before the bringing of this action to foreclose the mortgage.

The condition of the mortgage is that the mortgagor shall pay file mortgagees all sums due at that time, or that might thereafter become due, in instalments of two hundred dollars each quarter with interest. When the mortgage was given, the mortgagees held the land under a lease from the mortgagor; and the condition of the mortgage contains a further provision that the instal ments, as they become due on the mortgage, shall be paid in rent “to the extent that rent shall become due” under the lease. This was an agreement that the rent should be applied so far as it might go to the payment of the mortgage debt. No rent became due on the lease until there were several instalments overdue on the mortgage. So that the rent came far short of paying the amount required. The indorsement on the lease, which bears on this question, is an agreement of the lessor that, if his debt to the lessees should not be paid at the end of the lease, they should have the right to remain in possession at the same rent until paid in full.

*368The mortgage was made some time .after both the lease and the indorsement, and it would be a forced construction of these papers to hold that the mortgagees were not entitled to the payment of the instalments required by the condition of the mortgage in money, if the rent was insufficient. The ruling requested on this point would leave the demandants no way of collecting their debt except by the rents ; it would require them to hold for an indefinite period; and if by fire or other casualty the rent should be reduced so as not to be enough to keep down the interest, to hold until such time as the mortgagor should see fit to pay from other sources. The indorsement referred to is plainly a stipulation giving to the lessees the additional security afforded by the right to hold the premises and apply the rent after the end of the lease to such balance of the plaintiff’s debt as should then remain unpaid, by the application of the rents reserved in the lease or “ otherwise.” It does not preclude other remedies or a resort to other securities. The judge rightly refused to rule as requested on this point. The demandants were entitled to a verdict if there was anything due on the mortgage at the date of the writ. Slayton v. McIntyre, 11 Gray, 271.

The abatement required by the terms of the lease to be made, in case of a partial destruction of the premises, was properly stated by the judge, and the ruling requested properly refused. The property leased was mill property with all the buildings thereon, and the lease provided for the abatement of a just and proportionate part of the rent in case any part was destroyed by fire. This implies that the loss in the rental value of the whole property is the fair measure of abatement.

The agreement for an extension of the lease without rent was r' for the further term of six months after the expiration of the term of five years.” It is an extension of the time to five years and six months, and the plaintiffs were entitled to hold the last six months without rent. So the judge ruled.

Exceptions overruled.