146 Mass. 148 | Mass. | 1888
In May, 1869, Peter Dooley made a mortgage to one Wiley, who assigned it, on November 27, 1869, to one Ketchum, who assigned it, on August 17, 1876, to the defendant. The plaintiff holds the equity of redemption under a mortgage deed given by Peter Dooley, on August 7,1871, to one Edmonds, and assigned by Edmonds’s administrator to the plaintiff in 1878, and seeks in this suit to redeem the land from the first mortgage. The case was referred to a master to report the amount due upon the mortgage held by the defendant, and was reserved for the full court upon the master’s report and exceptions thereto. We will first consider the plaintiff’s exceptions in their order.
The plaintiff also claims that there was an accord and satisfaction of the mortgage debt under the agreement between Peter Dooley and Ketchum, dated January 1, 1875, which was in sub
2. The plaintiff’s second exception is to the amount allowed by the master on account of the deficiency in the quantity of land. The master found the deficiency to be thirteen acres, and allowed four dollars an acre under the memorandum before referred to, which provided that, “ if said land falls short the required number of acres to amount to the sum set forth in the said notes at four dollars per acre, the said notes are to be reduced in that proportion.” The plaintiff contends that the notes were given only for the price of the land which was at that time conveyed by Wiley to Peter Dooley, and that the agreement is to be so construed as to reduce the notes to the sum that the land when measured would amount to at four dollars an acre. This is one construction of the language of the memorandum, and the most natural one ; but it is not plain, and the subject matter and attending circumstances show that it was not the meaning of the parties.
The land lay partly in Vermont and partly in this State. The part in Vermont was fixed by the deed at 200 acres, the part in this State was said to be 250 acres more or less. It was only the land in this State which could fall short or exceed 250 acres on measurement. This makes the required number of acres in it to make up the amount of the notes, to be 365, or 115 more than was estimated and stated in the deed, and the notes and mortgage to be $468 more than the parties believed to be the whole purchase money for the land, which, it is found, they put at the price of four dollars an acre. It was found by the master, that there had been a contract between Wiley and Peter Dooley by which Wiley had agreed to convey to Dooley 800 acres of land, which included that which was conveyed; that Dooley had
3. The plaintiff’s third exception is to the refusal of the master to make deductions and allowances for certain supposed defects in title. Two defects in title are specified which existed when the mortgage was given; but the master finds that both have been made good, and there is no occasion to consider whether the plaintiff could avail himself as against the defendant of a breach by Wiley of the agreement made when the mortgage was given.
It is argued that the conveyance by Ketchum to Wiley of the twenty-five acres of the Johnson lot, so called, being a portion of the land in Vermont, was made after the land had been diminished in value by the cutting off of timber by Ketchum, and that the plaintiff cannot be required to accept that reconveyance as making good the title. The title to the land was made good by the deed to Wiley, and it was held under the mortgage, and the title to it was made absolute in the defendant by the foreclosure in Vermont, and its value was properly allowed by the master as part of the value of the land in Vermont. Whether any timber was cut from it by Ketchum under his paramount
4. The plaintiff’s fourth exception is to the allowance of two of the notes, on the ground that they are not correctly described in the mortgage. The only discrepancy which appears is, that the note payable in five years from its date is described in the mortgage as payable in four years; that is, the mortgage describes two notes payable in four years, instead of one payable in four years and one in five years. The note payable in five years is the one on which the $260 was indorsed at the time the mortgage was given. The master properly treated the amount due on it as due on the mortgage.
5. The exception to the allowance for payment of taxes, and of interest on such payment, must be overruled.
6. The sixth exception is to the allowance of any interest on the notes after January 1, 1875, on the ground that, by the agreement of that date between Ketchum and Peter Dooley, interest on the notes was to stop at that time. The words relating to interest on the notes are, “ the interest on the forementioned notes at the date of this instrument per agreement is to stop.” This agreement has already been adverted to in considering the first exception. Besides giving to Ketchum the right to cut timber on land of Dooley in Vermont, to apply on the mortgage notes, it gave him the right to cut a certain quantity of timber on the mortgaged premises in this State. One Arnold held a deed of the land in this State at the time of the mortgage, as security for a note of Wiley’s, and. Ketchum had paid him and taken a quitclaim deed of the land from him. By the agreement, Ketchum agreed to quitclaim this land to Peter Dooley. The whole agreement was in the form of a sale of timber standing in Vermont in sufficient quantity to pay the mortgage debt, to be cut and removed within three years, and of a certain quantity of timber standing in this State, at a fixed price, which was equal to the amount Ketchum had paid to Arnold, and Ketchum was to extinguish' any claim under Arnold’s deed by quitclaim
7. The seventh exception is to the allowance of interest on the costs of the foreclosure suit in Vermont. The same mortgage covered lands in Vermont, and the plaintiff obtained a decree of foreclosure in that State. The decree was entered on December 22, 1883, fixed the amount due on the mortgage and the costs of suit, and required payment of those sums and interest by a fixed day, or the right of redemption would be foreclosed. The payment was not made, and the foreclosure was completed. In fixing the value of the land to be applied to the mortgage debt, the master deducted from its full value the amount of the costs, with interest from the date of the decree until the foreclosure was perfected. The objection is to the allowance of the interest. We think this was right. The amount of the costs when the mortgage was foreclosed should be deducted from the value of the land, to ascertain the amount that was applicable to the debt, and that, by the terms of the decree, included interest from the date of the decree.
8. The eighth exception is to the application to the Arnold mortgage of the value of,,the timber cut by Ketchum, as stated under the sixth exception. The application to the Arnold mort
The defendant’s exception to the refusal of the master to allow annual interest must be overruled. His other exceptions become immaterial. Exceptions of both parties overruled.