Latimer v. Moore, 14 F. Cas. 1186

Latimer v. Moore

14 F. Cas. 1186 | U.S. Circuit Court for the District of Michigan | 1846

OPINION OP

THE COURT.

This bill was filed to foreclose a mortgage given on certain lots in the village of Cassopolis, in 1 the county of Cass, Michigan, to secure the payment of two promissory notes, each for the sum of four hundred and fifty dollars. In the bill, Barnum is represented to be in possession of the premises, under some claim, as purchaser or otherwise, the particulars of which are unknown to the complainant, except that the interest or title claimed, is derived from Wood and Matte-son, and that is subject to the mortgage. And the bill prays the defendants may answer, etc. And that an account may be taken, and that so much of the mortgaged premises may be sold as shall be necessary to pay the principal and interest due, and the costs, etc. Barnum having had possession of the premises, the complainant contends that he must account for the rents and profits. Lands sold to A. subject to an annuity of £15 a year, to the sister of the vendor. The lands are afterwards mortgaged and otherwise charged by A., and thus ■charged descend to his heir at law, a court ■of equity will make a personal decree ■against the heir for the arrears and growing payments of this annuity. Champernowne v. Hillersdon, 4 Brown, P. C. 330; 1 Mer. 240; 1 Chit. Eq. Cas. 690. A tenant for life is bound to keep down the interest of in-cumbrances, although the whole of the rents ■are exhausted by it. Revel v. Watkinson, 1 Ves. Sr. 93; 1 Chit. Eq. Cas. 380. The heir at law can oblige tenant by the courtesy, to keep down the interest, as any other tenant. Casborne v. Scarfe, 1 Atk. 606, 1 Chit. 380. The court will sometimes appoint a receiver to receive the rents of the mortgaged premises, who will be required to pay the interest and the annual charges upon the land, Story, Eq. Jur. § 838; 5 Madd. 422; 6 Madd. 11; 3 Johns. Ch. 259. The mortgage debt always forms a part of the purchase money, on the purchase of the mortgagor’s equity of redemption. 3 Johns. Ch. 261. The above principles may be applied, if it shall be found that the mortgaged premises are in-•sufiicient to pay the sum due, etc. The court having referred, etc., to a master, whose report is before us, will decree a foreclosure .•and sale of the premises.