260 Mass. 33 | Mass. | 1927
The plaintiff alleges that it is the owner of certain real estate in Brockton,, upon which the defendant holds a mortgage, given to him in 1915 by Annie Rastok; and that on April 15, 1920, the defendant entered on the real
The master found that John Bastok, the owner, conveyed this property to his wife, Annie Bastok, by deed dated June 17, 1915, subject to a mortgage for $4,000 held by a cooperative bank. On December 29, 1915, Annie Bastok mortgaged the property to the defendant for $2,000 subject to the bank mortgage, this second mortgage being payable in five years with a power of sale. In July, 1915, the plaintiff brought an action against John Bastok in which a general real estate attachment was made and, on November 5, 1915, recovered judgment, upon which execution issued. On December 3, 1915, the right, title and interest in the property which John Bastok had on July 24, 1915, were taken and, on February 12, 1916, sold to the plaintiff for $869.40. A writ of entry by the plaintiff against Annie Bastok and John Bastok, tenants, demanding possession of the premises, was entered the first Monday of February, 1917, and on March 5, 1917, upon default of the tenants, judgment for title and possession was entered in favor of the demandant. On May 12, 1917, execution issued for title and possession of the land, and possession was given the demandant April 15, 1920. A copy of this execution with the officer’s return was duly recorded in the registry of deeds.
The defendant made an entry to foreclose his mortgage April 15,1920, and has since been in possession collecting the rents and making payments in connection with the property. The master brought the account of income received and expenses incurred by the defendant down to January 1, 1923, and computed interest on the principal of the second mortgage to December 29, 1922. He then allowed as a credit $400 paid in 1917 to prevent a foreclosure of the first
The plaintiff, having obtained judgment for possession of the property on a writ of entry brought against John and Annie Rastok, and having been given possession on an execution for title and possession, had sufficient title to give him the right to redeem. Isam Mitchell & Co. Inc. v. Rastok, 241 Mass. 505, 508. G. L. c. 244, § 18, gives the mortgagor or person claiming or holding under him the right to redeem. A person to whom the mortgagor’s title has been transferred by operation of law has that right. Emerson v. Atkinson, 159 Mass. 356, 361. The judgment creditor, who was the purchaser at the sale, brought his action to recover possession of the premises within one year after the return day of the execution in accordance with G. L. c. 236, § 47. That statute is restricted in its scope to instances where title and possession are in a person who is not the debtor. Cunningham v. Bright, 228 Mass. 385, 388. It is provided in G. L. c. 236, § 20, that if execution is levied on land of which a person other than the. debtor is actually
The master’s report does not appear to carry the account beyond January 1, 1923, and it would seem that he must be in error in stating as the amount due January 1, 1925, the sum found to be due on the earlier date; and the final decree entered September 15, 1926, authorizes redemption upon the payment of this same amount. There is nothing on the record to indicate that the balance due at the date of the decree was the same as the balance computed to the earlier date. The decree should state the amount due upon the account brought down to the date of its entry. Brown v. South Boston Savings Bank, 148 Mass. 300, 309. When interest is allowed under G. L. c. 244, § 28, the statute provides that it shall be computed to the date of the decree.
There are no facts appearing of record to justify us in saying that the master erred in disallowing the item of $37.60 paid the first mortgagee as fines. The provisions of the decree requiring the defendant to execute an acknowledgment of the receipt of the money when paid, or, if he neglects or refuses to accept it, authorizing the payment of it into court, with an execution in favor of the plaintiff for the possession of the land, and the further provision that the plaintiff shall hold the mortgage as assignee in accordance with the provisions of G. L. c. 236, § 35, seem to be free from legal objection.
This suit was brought without previous tender. It appears that the condition has not been performed, and there is no finding that the defendant has been guilty of the neglect or default referred to in G. L. c. 244, § 24. It follows that by virtue of that statute the defendant is entitled to costs of suit.
The case is remanded to the trial court for correction in the computation of interest on the $400 item and for the determination of the balance of the account to the date of the entry of the decree; and the decree for redemption is to be conditioned upon the payment of the sum so found to be due with interest to the date of payment and with costs to be
Ordered accordingly.