146 Mass. 517 | Mass. | 1888
The defendant is the assignee of a mortgage of real estate, given on June 1,1873, to secure payment of eleven hundred dollars and interest thereon at seven per cent per annum, and has been in possession of the mortgaged premises since June 20, 1887, receiving the rents and profits thereof. A balance of four hundred dollars of the principal remains due, and no interest has been paid since the assignment to the defendant, on April 15, 1881. The plaintiffs bring their bill to redeem, and contend that the defendant is not entitled to interest, because her husband, to whom she was married a short time before taking the assignment, and who died on April 28, 1887, was formerly the husband of the mortgagor, and joined in the mortgage for the purpose of releasing his right as tenant by the curtesy initiate, and after the death of his former wife was in possession of the mortgaged property as tenant by the curtesy until his death.
He had no relation to the mortgage except through his right in the mortgaged estate. He was not legally liable upon the debt secured, and as between himself and his wife, the assignee
The plaintiffs concede that the defendant is entitled to the principal of the mortgage debt, but contend that the interest should have been paid by the life tenant of the property, who was her husband, and that she has lost her security for that part of her claim. But the law recognizes no such distinction between principal and interest. Payment of the interest as well as of the principal was secured by the contract. Brannon v. Hursell, 112 Mass. 63. Quinby v. Cook, 10 Allen, 32. And the fact that her husband was in possession of the mortgaged estate as tenant by the curtesy put upon him, no obligation to her, legal or equitable, in reference to the interest upon the mortgage debt. As between him and the plaintiffs, who owned the
By redeeming the mortgage, the plaintiffs might at any time have put themselves in a position to enforce payment of interest by the life tenant, and to save themselves from risk of loss by his neglect. Upon the facts as now presented, they are entitled to redeem by paying the defendant $400, and interest thereon at seven per cent from April 15, 1881, less such deductions as should be made on account of her receipt of rents and profits.
Decree accordingly.