100 Mass. 270 | Mass. | 1868
The equity in favor of the defendants Alison and Hooper is so clear and so strong, that it must prevail unlesu there is some settled rule of law or course of practice inconsistent With it.
There can be no doubt that a mortgagee in possession is not usually entitled to allowance, in a suit for redemption, for improvements made upon the mortgaged estate. If the mortgagor has known and encouraged the making of such improvements, giving the mortgagee assurance and reason to believe that he would not redeem, this might be a bar to the right of redemption. Fay v. Valentine, 12 Pick. 40.
But Alison and Hooper do not stand upon the mere right of a mortgagee in possession. Their title was not acquired as an assignment of a mortgagee’s interest. The statement of facts before us finds that Larissa took an assignment from the mortgagee, who was in possession for the purpose of foreclosure after condition broken; that the mortgagor had left the country under such "circumstances as to give some reason to suppose that he did not intend to return, and that he had abandoned all intention of - redeeming the estate; that Alison, who was a stranger, found Larissa in the unquestioned possession of the estate, professing to have an absolute title, and was assured by him that he could convey a perfect title ; and that he purchased the half an acre in good faith, for an adequate consideration, believing that he got a good title. It is obvious that he did not take a transfer of any part of the mortgage debt.
It has been sometimes suggested that a conveyance by a mortgagee of a part of the mortgaged estate may be void ; though it is difficult to see how, as a mere transfer of legal title, this can be so. Wyman v. Hooper, 2 Gray, 141. But there can be no doubt that Alison and Hooper were rightly made parties to the suit for redemption. Gen. Sts. c. 140, §§ 13, 14, 28, 31.
The doctrine is thus stated by Mr. Washburn in his Treatise on Real Property: “ In some of the states a mortgagee is allowed to charge for beneficial and lasting improvements. And this is sometimes the case even in England. And such would probably be uniformly the rule where the mortgagee in making such improvements supposed himself to be the absolute owner, or the person who made them was an innocent purchaser, or did it by consent and agreement of the mortgagor.” 2 Washb. Rea. Prop. (3d ed.) 211.
We are of opinion that, as between Larissa and Alison, the