McNeil v. Call, 19 N.H. 403

McNeil v. Call

19 N.H. 403 | Superior Court of New Hampshire | 1849

Gilchrist, C. J.

The agency of Eaton is sufficiently

proved. The letter of Farrar, dated on the 18th day of July, 1842, shows that he was authorized to sell the property as he should see fit, upon his guarantee that the bank should be paid in full, and that all he should receive beyond the amount of the debt due the bank, should be retained by him for his own benefit. Fletcher says that Eaton acted as agent for the bank, and so says Fuller, until at last Eaton told him that he had bought the equity of redemption. In the case of Willard v. Henry, 2 N. H. Rep. 120, it was held that where a grantor remains in possession of land subject to a condition to be performed by the grantee, and the condition is broken, the forbearance by the grantor to make a claim to retain the possession for the condition broken, is sufficient evidence that the forfeiture is waived. The ease of Bachelder v. Robinson, 6 N. H. Rep. 12, decides that though an entry and possession by a mortgagee may have been sufficient to foreclose the^ right in equity to redeem, yet if he accept all the money secured by the mortgage, it would be a waiver of his entry for that purpose. In that case, Atkinson entered for breach of condition, in the spring of 1828, and accepted the debt on the 3d of December, 1830. So the receipt of a part of the debt is a waiver of the foreclosure. Deming v. Comings, 11 N. H. Rep. 483.

If an assignment be made of the mortgage, just before the expiration of the equity of redemption, to prevent the redemption, that may be regarded as a fraud, of which the party shall not take advantage to foreclose the mortgager or his grantee, until he shall have had a reasonable time to *415make a tender to the assignee. If the assignment be made without such intent, it may keep the equity open until the mortgager, or those claiming under him, can find the assignee and offer to perform the condition. Deming v. Comings, 11 N. H. Rep. 482. An agreement in writing by a mortgagee, after an entry for condition broken, that he will re-convey the premises whenever the debt shall be satisfied out of the rents and profits, or otherwise, will enable the mortgager to maintain a bill in equity to redeem, although more than three years have elapsed since the entry. Quint v. Little, 4 Greenl. 495. So an entry for condition broken may be waived by a subsequent entry. In Fay v. Valentine, 5 Pick. 418, a mortgagee having recovered a conditional judgment in an action for the possession, entered for condition broken, and afterwards entered for the judgment. It has been decided, Also, that it is competent for a court of equity to take away from third persons the benefits which they have derived from the fraud, imposition or undue influence of others, although the third persons may not have been parties to the fraud. Hugenin v. Baseley, 14 Vesey 273. It has also been held in England that there are ceu tain acts of the mortgagee which will of themselves open a decree of foreclosure. Thus, on a suggestion of a gross fraud, the court will, upon an original bill, overrule a plea of a decree of foreclosure, if the suggestion of fraud be not denied. Lloyd v. Mansell, 2 P. Wms. 74.

In the case of Hall v. Cushman, decided in the county of Coos, at the December term, 1843, Cushman, in reply to questions respecting his mortgage, said that “ he did not expect to look to his mortgage for indemnity, but if there should be a small balance due him, he would notify Hall or his counsel.” It was held that the application was in the nature of a call for an account; and there was an express stipulation that if he relied on the mortgage, he would render an account; that the court did not undertake to enforce this specifically as a contract, but that it would be in bad *416faith and fraudulent for the party, after having made this declaration, upon which the other party might well rely, to attempt a foreclosure, under the ordinary provisions of law, without notice. The foreclosure was therefore kept open. In the case of Crane v. The Claremont Iron Foundry Company, decided in the county of Sullivan, some time since, Heywood, who had notes against the company, had made an entry to foreclose. He was afterward summoned as the trustee of the company, and he brought forward this claim, treating it as an unpaid debt. This was upon the first trial of the case. Afterward he reviewed the action, and, although a year had expired since his entry, it was held that his bringing forward this claim was a waiver of the foreclosure.

Now we are satisfied from the evidence in this case, that Eaton assented that if the debt due the bank should be paid in the latter part of October, no advantage should be taken of the foreclosure. Eaton had, as has been before stated, sufficient authority to make such an agreement. He had a personal interest in the transaction, because the bank agreed that he should retain for his own benefit all that he should receive beyond the amount due the bank. That he did in fact make such an agreement, is positively stated both by Fuller and by Fletcher, and, although the agreement is denied by Eaton, the weight of evidence is as we have stated, and the effect of the agreement was, according to the authorities, to extend the time of payment, and to keep the foreclosure open until the latter part of October. The tender to the bank of the sum of $377, made by Fuller on the 11th of ■November, 1844, was therefore in sufficient season. The ■plaintiffs are entitled to a decree, according to the prayer of the bill.

Another question arises as to the costs. In the case of Detillin v. Gale, 7 Vesey 583, a question arose how far a mortgagee was entitled to costs. It appeared that great delay and expensive litigation had been occasioned by the *417mortgagee’s conduct before any account could be procured from him, and it was finally reduced by more than one-sixth part. Lord Eldon held that though a mortgagee acting reasonably as such, was to have his reasonable costs, it did not follow that he could claim his own expenses from other persons with whom he was litigating with regard to those acts which, upon his part, were not only unreasonable, but grossly oppressive. He was therefore compelled to pay the costs of the inquiry, because, as to that, he could not be considered as mortgagee ; and it was admitted that there was no precedent for making a mortgagee pay costs; his own costs were given him down to the answer, and no further.

In the case of Slee v. Manhattan Company, 1 Paige 81, it was held that in general, on a bill to redeem, the plaintiff pays costs to the mortgagee, although he succeeds in obtaining the relief claimed. But where the mortgagee has set up an unconscientious defence, he has not only been refused his costs, but has been compelled to pay costs. Brockway v. Wells, 1 Paige 617. "Where a party entitled to redeem offers to pay the defendant the amount equitably due, before he files his bill to redeem, he will not be charged with the defendant’s costs. Van Buren v. Olmstead, 5 Paige 9.

These authorities justify us in decreeing that the mortgagee should not recover costs against the plaintiffs, and as this defence is entirely unconscientious, it is equitable that he should pay costs.

The question of costs seems also to be settled by the Revised Statutes. The first section of chapter 191 provides that costs shall follow the event of every action or petition, unless otherwise directed by law or by the court. The seventh section authorizes the court to limit and allow such costs as they may deem just and reasonable. In the present case, the plaintiffs are substantially the prevailing parties. They have shown their right to redeem and to maintain their bill. By the Massachusetts statute of 1798, chapter *41877, the court were authorized, “ at their discretion, to award costs to either party, as equity may require.” In the case of Saunders v. Frosty 5 Pick. 271, 274, the court refused to award costs to the mortgagee, the defendant in the bill to redeem, and held that the rule that the mortgagee is, under no circumstances, chargeable with costs, is not only unreasonable, but opposed to the statute above cited. It appears to us to be equally opposed to the provisions of the Revised Statutes of this State. The tender of $377, made by Fuller to the Exeter Bank, on the 11th day of November, 1844, and his tender to Call of the sum of $209 10, on the 6th of July, 1845, will of course stop the accruing of any interest after those dates respectively.

The judgment of the court is, that the plaintiffs are entitled to costs, and to a decree according to the prayer of the bill.