139 Mass. 407 | Mass. | 1885
1. In determining whether the premiums paid for insurance are a proper subject of charge in the mortgagee’s account, it is necessary to know what was the contract between the parties, if any, in relation to insurance. It is stated by the counsel for the defendant, in his brief, that three of the mortgages held by the defendant contained provisions upon the subject, but none of the mortgages are before us. The case having been submitted on briefs, without oral arguments, there has been no opportunity to clear the matter up; and, as neither party has taken pains to bring before us the necessary facts, which an inspection of the mortgages would disclose, we have no means of determining whether the master’s rulings on this subject were right or wrong. The exceptions of both parties as to the several items of insurance are therefore overruled.
2. It appeared from the master’s report, that the rates of interest reserved in the mortgage notes varied from seven to twelve per cent. The master found that, on a certain date, the plaintiff procured an offer to be made, on her behalf, to the defendant to pay the amount due upon the notes, and that she had made arrangements to raise the money necessary therefor, and was prepared at that time to pay the amount due; and that the defendant refused to accept the same except upon the condition that the value of certain buildings belonging to the defendant, but annexed to the land, should also be paid to him. The master computed interest on the notes at six per cent from the date of this offer.
In the present case the plaintiff appears to have done all that was necessary to be done by her before receiving the account of the mortgagee. By the mortgagee’s announcement that he would not accept the money except upon compliance with' his illegal demand, he waived the necessity of anything further on her part. He was in fault; and it would be inequitable to allow him to
3. The defendant, on taking possession of the premises, found unpaid water-rates due from the plaintiff, and paid the sum due, in order, as may reasonably be inferred, to prevent the supply of water from being cut off, according to the rules of the aqueduct company. This method of supplying water to the building was, as it thus appears, in use by the plaintiff herself; and she may be supposed to have known the rules of the company. Under these circumstances, the defendant might properly pay the water-rates, and charge them to the plaintiff. It is urged in argument, that the use of the water was merely a convenience; but, in view of the fact that this method of obtaining water had the sanction of the plaintiff, we think it may fairly be deemed a necessity. Saunders v. Frost, 5 Pick. 259, 270.
4. It appears that the plaintiff gave an order on the defendant, in favor of one Maynard, for the whole amount of ■ the defendant’s indebtedness for rent to be due on a certain day; and the defendant paid Maynard §359.44 accordingly, whicli was to go in reduction of the plaintiff’s mortgage debt to Maynard. Now the defendant, having become the assignee of the Maynard mortgages, seeks to have this sum reduced, by alleging that he paid Maynard too much ; but the master found that he should be bound by the settlement. This presents a question of
5. The defendant properly put the plaintiff out of the rear tenement, which thereafter for a time remained unoccupied. The fact that he did so has no proper bearing on his liability to be charged for rent afterwards. The master does not state that the omission to receive rent for this tenement was by the defendant’s neglect, or that he did not use due diligence to secure tenants. His finding does not appear to rest on these grounds. The report seems to state all the facts on which the finding rests; and, in the absence of proof of negligence or want of due diligence on the part of the mortgagee, he is not chargeable.
The account will be changed so far as is necessary in order to conform to this decision. Decree accordingly.