137 Wis. 13 | Wis. | 1908
Tbe greater part of tbe briefs of counsel on both appeals is taken up in discussing tbe findings that all tbe repairs and improvements of tbe mortgaged property charged for by defendant in bis account, except tbe enlargement of tbe bam, were made by him with tbe knowledge and approval of tbe plaintiff and were necessary to tbe profitable management of tbe farm; that such enlargement required an expenditure of $175 out of a total of $297 paid for repairing and rebuilding tbe barn; that defendant knew from the beginning of bis possession bis sole interest in the property was by-virtue of a second mortgage be owned thereon; and that tbe rental value of the property during such possession was $400 per year, notwithstanding very positive claims made upon tbe one side or tbe other that some or all of these findings are unsupported by evidence, as we read tbe record, there is credible evidence as to each matter and no clear preponderance of evidence against tbe conclusion arrived at by tbe trial court in regard to either of them. It is
In view of the fact as indicated, supported as we think it is by the decision upon the former appeal and the undisputed oral and written evidence, that defendant incurred the expenses charged in his account with knowledge of his interest in the property and with the approval and consent of plaintiff, with the exception mentioned, we may pass as immaterial the complaint that evidence was permitted on the part of the defendant that he believed, prior to the judicial determination to the contrary, that he was the true owner of the property and the argument made on the subject of whether he acted in good faith as such owner in making the expenditure, and that a mortgagee in possession is not entitled to reimbursement for permanent improvements of the property as a condition of the mortgagor being permitted to redeem.
While it is true, generally speaking, that a mortgagee in possession is only entitled to be reimbursed by the holder of the right of redemption for his reasonable expenditures for preserving the property, such as taxes, repairs, and the like, not including permanent improvements, he is entitled in addition to be compensated for his reasonable outlays in making such improvements as such holder approves and consents to. That exception to the general rule is as well established in the law as the rule itself and is just as well grounded in principles of equity upon which such rule depends. 2 Jones, Mortgages (6th ed.) §§ 1127, 1128; 2 Pingrey, Real Prop. § 970; 27 Oyc. 1266, and cases cited. Gleiser v. McGregor, 85 Iowa, 489, 52 N. W. 366, is a good type of the adjudications on this subject. The instrument creating the mortgage interest was in the form of an absolute deed and the circumstances were quite similar to those in hand. In disposing of the matter as to the improvements the court said:
“Having virtually consented to the improvements, there is no reason why the plaintiff should not be held to account*19 for what they cost, in the absence of evidence showing that the cost was so great as to indicate that the defendant intended thereby to prevent any redemption.”
To the same effect are Harrill v. Stapleton, 55 Ark. 1, 16 S. W. 474, and many other cases that might he referred to. Merriam v. Goss, 139 Mass. 77, 28 N. E. 449, is to the effect that a mortgagor is liable to reimburse his mortgagee in possession for the latter’s expenditures for reasonable improvements when, having knowledge of their being made and intending to redeem, he makes no objection. That is particularly in point in a case like the one before us, characterized as it is by circumstances well calculated to produce serious doubt, at least, in the mind of the mortgagee as to whether the right of redemption will ever be exercised.
There is another exception to the general rule as to allowing á mortgagee in possession compensation for improvements, which is applicable here by reason of the finding that the improvements in question were reasonably necessary for ■the profitable management of the farm. That exception is this: Where possession by the mortgagee is under agreement and the improvements are necessary to the “judicious and proper management of the property” (Rowell v. Jewett, 73 Me. 365), or as stated in Wells v. Van Dyke, 109 Pa. St. 330, where they “were necessary and beneficial for the proper use of the property.” That exception, manifestly, does not apply where there is not at least consent by not objecting; not under any circumstances where there is a protest against the expenditure.
There is no difficulty with the trial court’s disposition of the case because of there not being any finding as regards the extent to which the improvements were beneficial to plaintiff. That, ordinarily, is the equitable limit of recovery, but not so where the making of the improvements was authorized or consented to. In that case the legitimate basis is the reasonable cost, the same as in case of repairs. Merriam v. Goss, supra.
What has been said brings us to the accounting. The court was not able from the evidence to distinguish definitely between defendant’s expenditures for repair^ and those for improvements, but that is not very serious, since, in view of the consent and approval found, all are on the same basis, except the outlay for enlarging-the barn. True, since the court found the enlargement was not consented to and, as we understand it, was not really necessary for the beneficial use of the farm, it was necessary to eliminate from the account all matters in that regard. That was not done by specification of particular items, but was as to the aggregate with substantial justice between the parties in our judgment.
The account was stated by crediting defendant with inter' est on his mortgage indebtedness and his disbursements down to March 1, 1900, the most convenient time in the judgment of the trial court for a first settlement after the possession commenced, and crediting him expenditures for interest paid on the first mortgage, taxes levied upon the property, and repairs and improvements, and charging him for the rental value of the farm to that date, and the $17 5 included in the items of credit covering the cost of enlarging the barn, and striking a balance, and proceeding in like manner for each year down to the final settlement March 1, 1908, making
These fundamental rules are to be observed in an accounting of this sort: There should be no rest resulting in a compounding of interest nor any other than such as equity requires. Any balance in favor of the mortgagor between debit and credit items after discharging the interest should be added to the principal, and any balance between such items after discharging the interest in favor of the mortgagee should go in reduction of the indebtedness. In this case the balance was in defendant’s favor for each of the first four years and for all except the second thereof such balance was
Again, for each of the last four years there was a small' balance in favor of the plaintiff. Charging such balance to-defendant with interest from the date of each down to the-time of closing instead of applying the same in reduction of the indebtedness, resulted in a small error. in plaintiff’s favor. Again, the court credited the defendant each year with interest upon the interest paid on the outstanding mortgage from the date of the payment down to the closing of the account for that year; to that extent swelling the balance in favor of the defendant at the end of the year upon which interest was computed down to the closing of the account, thus compounding the interest, resulting in a further error to a small amount in defendant’s favor for such compounding, and a further error in allowing interest upon the interest item before the close of the current year.
On the other hand, since defendant was charged with ihe full rental value of the farm as improved by the reconstruction and extension of the barn, he is obviously entitled to interest on the cost for the enlargement from the end of the year in which the same occurred down to the closing of the account True, it has been held that a mortgagee in possession who is allowed to recover for improvements should not be permitted to have credit for interest thereon, since he has-
' We note that notwithstanding the .learned court decided that all of the improvements made by the defendant were consented to by plaintiff and that they were necessary to the profitable management of the farm, except as to the $175, it disallowed items for fruit trees and setting the same out and for reseeding the orchard, aggregating $17.50. It is the opinion of the court that credit for that amount should have been allowed for the' year in which the expenditure was made. We must assume that it was an oversight in not doing so. j
There was a charge for $2.50 for insurance on the property, paid in_1902, which was disallowed. It is believed that in the light of modern ideas in respect to the reasonable care of property by one in possession thereof in the nature of trustee for another, having a duty or authority to preserve the same, reasonable expenditures for insurance are as legitimate as such expenditures for repairs and to prevent loss by decay or destruction otherwise.
The aggregate of the corrections in plaintiff’s favor and those in defendant’s favor in accordance with the foregoing shows that the one substantially balances the other. There is not enough difference in view of. the nature of the account to take the matter out of the field of de minimis non curat lex.
Some other objections to the account made upon defendant’s appeal may well be briefly disposed of. There is one that the defendant should have been allowed credit for the
There is a further claim to interest on items of expenditure during each of several years down to the following March 1st, upon the assumption, we take it, that there was no income from the property to provide therefor till that time. Obviously, there was no fixed date when the rent became chargeable. It was accruing day by day as the items of expense became chai’geable, and equitably the one so fax-offset the other that for convenience and as the most practicable metho.d and the usual one for an equitable adjustment, all items of debit and ci-edit for each particular year were brought down to the end thereof without interest, for a determination of the condition of things between the parties at that time.
It is urged upon defendant’s appeal that the general rule in an action of this sort is that defendant is entitled to costs •notwithstanding plaintiff recovers. Such we recognize as being the general chancery practice (17 Ency. Pl. & Pr. 975, and cases cited), but as is usual there are important exceptions. One of them exactly’fits this ease, viz.: When defendant is clearly at fault in the litigation to the plaintiff’s prejudice by denying his right of redemption and compelling him to establish it by protracted and’ expensive litigation, be has no equitable right to costs or to be relieved from paying costs. Wells v. Van Dyke, 109 Pa. St. 330; Still v. Buzzell, 60 Vt. 478, 12 Atl. 209; Hills v. Loomis, 42 Vt. 562; Ryer v. Morrison 21 R. I. 127, 42 Atl. 509; Barton v. May, 3 Sandf. Ch. 450; Turner v. Johnson, 95 Mo. 431, 454, 7 S. W. 570;
Serious complaint is made because the award of costs to the plaintiff was absolute. It may well • be that, ordinarily, where in a case of this sort costs are adjudged to the plaintiff they should be contingent upon the right of redemption being actually exercised, but it is considered that such rule is not without its exceptions, though it may be said there should be some rather extraordinary circumstances to justify making the mortgaged pay costs regardless of the right of redemption being exercised. However, where, as in the instance before us, the right of redemption is denied and the burden of establishing it is very great; the contest in regard to the mat ter and the final accounting requiring several trials in several courts, covering a period of several years, attended with expenses so great that the magnitude of the burden may well render the right of redemption when fully established and made exercisable of little value, or, at least, its value under the circumstances very much impaired, — it is not an abuse
There are some other trifling matters which, as we view them, cannot in any event affect tbe result and do not involve any important principle of law, and, therefore, we will pass them with this brief notice. Tbe general result of the foregoing is that tbe judgment as rendered does substantial justice between tbe parties.
, By the Oourt. — Tbe judgment is affirmed upon both appeals. Neither party will be taxed with costs in this court in favor of tbe other, and each will pay one half of the clerk’s costs.