206 Mass. 252 | Mass. | 1910
The defendant is the holder and owner of what was originally a mortgage on one hundred and forty lots of land in Worcester, given to secure the payment of $10,500, on de- - mand, after five years from the date of the mortgage. The mortgage is dated October 15, 1897, and contains a provision that the grantee therein will “release and quitclaim any lot upon the payment of $150 per lot of 7,000 sq. ft.” The plaintiff took an assignment of a second mortgage on six of the lots. This mortgage was dated December 2,1902, and was given to secure the payment of $500 on demand after date. It was assigned to the plaintiff March 7, 1903, and the master found that the defendant had no actual notice of this mortgage until March 14, 1903. The plaintiff subsequently, on June 20,1905, foreclosed this second mortgage and became the purchaser of the lots at the foreclosure sale. This is a bill by him to redeem these lots from the defendant’s mortgage, which was overdue when the plaintiff took his assignment. The case was sent to a master,
It appeared from the master’s report that, of the one hundred and forty lots which were originally subject to the defendant’s mortgage, one hundred had been released by the defendant before the defendant received from the plaintiff notice of the assignment of the mortgage on the six lots in question. It further appeared that of the forty lots remaining the defendant had released twenty-eight since receiving from the plaintiff notice of the assignment, leaving only twelve lots, including the six belonging to the plaintiff, subject to the mortgage.
The plaintiff contends that he is entitled to redeem upon payment of $150 for each lot of seven thousand square feet, according to the terms of the mortgage deed held by the defendant. If that is not so, then he contends that he is entitled to an assignment of the mortgage, either upon paying to the defendant what shall remain after deducting from the balance due thereon such proportion thereof as the total value at the date of the mortgage of the lots which have been released bears to the total value as of the same date of all the lots covered by the mortgage, or upon paying to the defendant what shall remain after deducting from the balance due on the mortgage the value of the lots that have been released since the defendant had actual notice of the assignment of the mortgage on the six lots to the plaintiff. The master did not adopt either one of these methods for ascertaining the amount to be paid by the plaintiff. He determined the amount by deducting from the balance due on the mortgage such proportion thereof as the value of the twenty-eight lots released by the defendant after he had actual notice of the assignment to the plaintiff bore to the value of the forty lots which then remained subject to the mortgage.
We think that the rulings of the master which were confirmed by the court were right. The covenant or agreement on the
The bill as originally drawn set out that there was $75 due on each lot, and alleged that the plaintiff had tendered the same with interest which the defendant had refused to accept, and that the plaintiff brought the sum so tendered into court; and prayed that an account might be taken of the amount due the defendant on his mortgage on said lots, and that on payment of
If the parties can agree within ten days on the sum to be deducted from the amount named in the decree, or if the defendant consents to the deduction of the amount tendered and interest from the time when the money was received by the defendant, the decree may be modified accordingly, and, as modified, affirmed. Otherwise the plaintiff’s exceptions to the' master’s report will be overruled, the decree set aside and the case stand for hearing as to what amount if any shall be deducted by reason of the alleged receipt by the defendant of the money tendered by the plaintiff, and the entry of such decree as the facts found in relation thereto will warrant.
iSo ordered.
The case was submitted on briefs.
William J. Taft, Esquire.
By Aiken, C. J.
The finding of the master with regard to this agreement was as follows : . “ After the description of the lots covered by said mortgage, and immediately before the habendum clause of said mortgage, were these words : 1 The grantee hereby agrees to release and quitclaim any lot upon the payment of $150 per lot of 7,000 sq. ft.’ ”
The master found in substance that on March 14, 1903, when the defendant first had notice of the plaintiff’s mortgage, there was due on the defendant’s mortgage $5,480.78 ; that the forty lots then subject to the defendant’s mortgage were at all times worth $7,250.27; that the six lots covered by the plaintiff’s mortgage and subsequently purchased by him were at all times worth $1,214.96, and that between March 14, 1903, and the date of the filing of the plaintiff’s bill, June 30, 1905, the defendant released from his mortgage twenty-eight of the lots, worth $5,019.71, and received to be applied as part payments of his mortgage debt payments aggregating $1,800. His report then proceeds:
“ 19. Therefore I find that the plaintiff is .entitled to an abatement of Iflviv'iv °f $5,480.78, the amount due on said defendant’s mortgage on March 14, 1903, to wit, the sum of three thousand seven hundred and ninety-four and 60/100 dollars ($3,794.60).
“ 20. Therefore I find that the plaintiff is entitled to have assigned to him the defendant’s mortgage upon payment or tender to the defendant of. the sum of $1,686.18, with interest at the rate of five and one-half per cent, per annum, from said March 14, 1903, to the day of said payment or tender, less $30.99 interest, which I find the defendant has received as interest on those lots now standing in the name of the plaintiff, from said March 14, 1903, to September 1, 1903.”