118 Mass. 497 | Mass. | 1875
The court below has found that it was agreed by the demandant’s intestate that his note, held by the tenant, as well as the tenant’s account against him, should be applied towards payment of the mortgage debt. This finding of fact is final. The only question here is one of law; to wit, whether such an agreement can be made effectual in a suit to foreclose the mortgage.
The agreement is executory, it is true, and does not work an absolute payment and discharge, pro tanto, of the debt. Cary v. Bancroft, 14 Pick. 315. Sherer v. Collins, 106 Mass. 417. But it may be treated in equity as payment, if nothing has intervened to prevent the application of one towards the extinguishment of the other debt, since the agreement was made. Such an application was made in a bill to redeem in the case of Doody v. Pierce, 9 Allen, 141. The amount that is due on the mortgage is to be ascertained and determined by the court in a writ of entry to foreclose in the same manner as in a bill in equity to redeem. Gen. Sts. c. 140, §§ 5, 25.
If there were counter claims which ought to reduce the demands of the tenant, by way of set-off or otherwise, they should have been proved at the trial. That the demandant had presented bills, and made such claims, availed nothing. There having been no error in law in the court below, the exceptions must be Overruled.