182 Mass. 5 | Mass. | 1902
The only evidence at the trial was the auditor’s report, and the only question before us is whether the judge was warranted in his finding for the plaintiffs.
Upon the evidence the judge might properly have found that at the time the defendant entered to foreclose on September 7,
Upon such findings can the plaintiffs recover? It is contended by the defendant that since these repairs so far as respects their nature were such as a mortgagee in possession may properly make and for the expense of which he may be allowed, the general rule applies; and that it is immaterial whether the mortgagee intended to foreclose by holding possession for three years or by the more summary process of a sale under the power, ór whether the repairs were needed to preserve the property so that it would be in the same condition at the sale as at the entry.
A mortgagee who has entered for foreclosure is not yet the owner of the land. He holds it as trustee for the owner. As a rule he has no authority to make the estate better at the expense of the owner. The mortgagor as the owner is the only person
But the mortgagee is to be held to good faith. If, not intending to keep possession, but entering upon the estate simply and solely for the purpose of more "effectually foreclosing by an immediate sale to himself or to some third person under the power contained in the mortgage, he makes repairs which are not needed to preserve the estate from loss or injury while he is in possession and are not made for that purpose but solely that a higher price may be obtained at the sale, then it may be fairly said that he has gone beyond his duty and his right as mortgagee.
We cannot say that the finding of the court was not warranted by the evidence. According to the terms of the report there must be
Judgment for the plaintiffs for $174-77, with interest from January 18,1899.