141 Mass. 361 | Mass. | 1886
The defendant, under authority from the Legislature, built a dam and maintained a reservoir for the
The first question is, whether the settlement by the mortgagee is a defence to this suit by the mortgagor.
In general, the mortgagee of land is entitled to the damages for a permanent injury to the land impairing the value of his security. Searle v. Sawyer, 127 Mass. 491. Wilbur v. Moulton, 127 Mass. 509. Page v. Robinson, 10 Cush. 99. Cole v. Stewart, 11 Cush. 181. Gooding v. Shea, 103 Mass. 360. Byrom v. Chapin, 113 Mass. 308.
The plaintiff contends that this rule only goes to the extent of recognizing the right of the mortgagee to the possession of things that have been wrongly severed from the realty and converted into personal property, as in the two cases cited above from 127 Mass. But the other cases cited show that the right of action of the mortgagee is based upon his interest in the property, and that his damages are measured by the extent of injury to the property.
While the paramount right to sue for and recover the damages was in the mortgagee, yet he would hold what he recovered under the mortgage, and the mortgagor had an interest in the question of the amount to be recovered, and the parties were bound to act with due regard to his interests. The plaintiff contends that she is not bound by the settlement between the mortgagee and the defendant, because it was made under an agreement between them that the amount of damage to the land should be ascertained by arbitration, and that the mortgagee should discharge the defendant on the payment of two thirds of the amount found ; and that the amount paid was but two thirds of the amount of the damages.
The rule, as laid down in Byrom v. Chapin, ubi supra, is, that “ reasonable satisfaction fairly made in good faith to the first
So far as the liability of the defendant turned on a contested question of fact, the answer of the jury to the question submitted to them in this case shows that the compromise was a gain to the plaintiff;
The decisions that damages for the taking of land for public uses under statutes are to be assessed to the owner of the equity, without regard to mortgages upon the land, rest upon reasons wholly inapplicable to the case at bar. Farnsworth v. Boston, 126 Mass. 1.
As this decision disposes of the case, the other questions presented by the exceptions become immaterial.
Exceptions overruled.
See Sts. 1854, c. 338; 1856, c. 189; 1861, c. 118; 1864, c. 104; 1871, e. 361.
The jury found that the breaking of the dam was not in consequence of any negligence or mismanagement of the defendant in the construction, maintenance, or use of the dam; that the damage done by the flood to the land in question was $1691.66; and that the settlement by the defendant with the mortgagee was made in good faith. The amount of damages found by the referees was $1850.