203 Mass. 511 | Mass. | 1909
This bill, as amended, is brought to redeem certain personal property, being buildings standing upon leased land, from a mortgage given by the plaintiff to the defendant Linton. An accounting was necessary to determine the amount now due upon the indebtedness secured by the mortgage, and the bill is rightly brought under the rule stated in Bushnell v. Avery, 121 Mass. 148, Gordon v. Clapp, 111 Mass. 22, and Boston & Fairhaven Iron Works v. Montague, 108 Mass. 248. The mortgage was created by a bill of sale and a separate instrument of defeasance. Neither of these instruments is set out in the papers furnished to us, although copies of them were said to have been annexed to the original bill; and we have to act upon the meagre statements of their provisions contained in the pleadings and in the master’s report. After the mortgage to Linton, the property was conveyed by him and others, by bills of sale under seal and absolute upon their face, until it came finally to the defendant bank to secure another indebtedness to it from Linton; but it is not contended that the plaintiff’s right of redemption is affected by any of these transfers.
1. The master has reported that the mortgage was given to secure Linton for divers sums of money advanced by him to pay taxes assessed to the plaintiff, and has charged the plaintiff with interest upon the payments which were shown to have been made before the giving of the mortgage from their respective dates to the date of the mortgage. The plaintiff contends that these items of interest ought not to have been allowed, on the ground that it does not appear that there was any agreement for the payment of interest or that any demands for payment were made such as would warrant the charging of interest.
In our opinion this contention cannot be sustained. It is true that the master has stated in his supplemental report that “ there was no evidence of any agreement made by Linton and Mayhew as to interest,” that is, as we read the report, as to interest after the date of the mortgage; but he has also found that the mortgage was given to secure repayment of the sums advanced to pay the plaintiff’s taxes “and interest thereon up
2. The plaintiff also contends that the master ought not to have charged him with interest since the giving of the mortgage upon the amount of the taxes, being the principal sum secured thereby. But for the reasons already stated this contention cannot be sustained.
3. There was also an open mutual account current between the plaintiff and Linton, upon which a net balance of more than $100 was due from the latter to the plaintiff. The plaintiff contends that he should be credited with this sum, and that the amount both of principal and interest which he must pay to redeem the mortgage should be reduced accordingly. But upon the master’s findings the mortgage was given to secure simply the amounts paid by Linton for the plaintiff’s taxes and interest thereon ; the account current between the parties was entirely outside this indebtedness, and in the absence of an agreement between the parties the charges and credits therein could neither increase nor diminish the amount of the debt secured by the mortgage which the plaintiff must pay if he wishes to redeem from the incumbrance. That amount is not what would be found to be due upon a general settlement of all debts and accounts, but merely what is due under the mortgage. Bird v. Gill, 12 Gray, 60. Holbrook v. Bliss, 9 Allen, 69, 77.
The decree entered provides that the plaintiff’s payment, if he wishes to redeem, is to be made to the defendant Linton. As the bank has not appealed from the decree and appears to be content that the payment should be so made, we need not consider whether the payment ought not to be made to the bank. Nor for the same reasons need we consider whether the declara
The final decree appealed from should be modified so as to charge the plaintiff with the costs of the defendants upon this appeal, and so modified must be
Affirmed.
