19 N.H. 403 | Superior Court of New Hampshire | 1849
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
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
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
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
The judgment of the court is, that the plaintiffs are entitled to costs, and to a decree according to the prayer of the bill.