| Mass. | Mar 25, 1878
A brief statement of facts, and of the circumstances under which this bill is brought, may tend to simplify and make intelligible the long and confused record presented to us, and to indicate more clearly the questions we are called upon to decide.
The bill seeks to redeem certain real estate held by the defendant corporation. In 1846, Thomas J. Lobdell, under whom the plaintiff claims a right to redeem, assigned to the Western Railroad Corporation, as security for the payment of his own note, four notes and the mortgages of real estate by which they were secured. One of these mortgages was paid. The other three were foreclosed by the corporation and the commissioners of the sinking fund of the Western Railroad Corporation, to whom they had been assigned. The foreclosures of all were completed as against the mortgagors in 1852. In 1860, the plaintiff, by a final decree on a bill in equity brought by him against the executors of Lobdell, became entitled to hold in fee simple in his own right the premises described in these three mortgages, subject to the mortgages held by the commissioners. Under this decree, the plaintiff took possession of the estate and received the rents and profits until April 17,1862. The interest and taxes being then in arrear, the plaintiff surrendered possession to the commissioners, and notified his tenants of the change. The commissioners continued to hold the possession until January 1, 1872, when they assigned all interest in the land, mortgages and notes, and the claim secured thereby, to the Boston and Albany Railroad Company, a corporation formed by the consolidation of the Western Railroad Corporation with the Boston and Worcester Railroad Company.
While the commissioners were" thus in possession of the premises, John T. Dingley was employed as agent to manage the property and collect the rents from April 17, 1862, to July 1, 1868; after that, until the commissioners assigned to the company in January, 1872, the officers of the company were in charge. The master has found that, while ordinary and proper care was exercised in selecting Dingley as agent, yet that" “ Dingley, by reason of wilful or gross negligence, failed to collect such rents from said property as a provident owner, by the exercise of
In making up the account, the master has charged the defendant corporation not merely with amounts actually received while Dingley was agent, but with additional amounts which should have been received under proper management; and, after Dingley’s dismissal, he has charged the corporation only with rents actually received. Nearly all the questions raised by the exceptions of both parties to the master’s report arise upon the findings and rulings of the master in regard to the management of the estate under Dingley from April, 1862, to July, 1868. Upon a careful examination of the evidence reported, we fail to find any reason for disturbing the finding of the master on any question of fact. This disposes of a large number of the exceptions, and it only remains for us to consider whether such errors of law have been pointed out in the report of the master, as require us to reverse or modify the decree entered by the single judge against the Boston and Albany Railroad Company.
1. The decree in the suit against the executors of Lobdell, under which-the plaintiff obtained title to this land, was entered by agreement of parties. It must be considered to have established the fact that the foreclosure of the mortgages by the defendants gave the absolute title in the premises to Lobdell, which enured to the benefit of the plaintiff, subject to the right of the commissioners to have the debt incurred by Lobdell paid; in other words, the land was substituted for the notes and mortgages as collateral security. See Brown v. Tyler, 8 Gray, 135. It does not appear that the defendants were parties to that bill, but it does appear that by their subsequent conduct they acquiesced in the result. Precisely in what manner the commissioners were to enforce their right in this land, as collateral security, it is unnecessary to decide, for the acts of the parties determined the method to be adopted. The plaintiff took possession, and, failing to pay interest and taxes, as he was bound to do, and which we must presume it was agreed that he should do. he vol
It is also to be observed that this precise question is raised by the pleadings. The answer of the defendant corporation, in reply to the allegations of the bill, denies that the commissioners or their assigns have received any less rent than they could, with due diligence and without negligence or default on their part, ¡have received; and also alleges that, while in possession of the • estate, they made it yield all the rents and profits that, with due diligence and care in the management, it could be made to yield. The question, therefore, was directly put in issue, no distinction being raised between the occupation by the commissioners and by the company, and the master, having found there was negligence in the management while Dingley was the agent, could properly find what the premises would have yielded under proper management.
2. In this connection, the defendant corporation contends that the commissioners were public officers, acting under the St. of 1839, c. 50, and would not be liable for the negligence of an agent selected with due care. Assuming that they were officers, acting in behalf of the Commonwealth, on whom a duty is imposed, in the performance of which the Commonwealth has an interest as well as the Western Railroad Corporation ; yet that duty was simply to manage a fund of money and the securities
' In the case at bar, the duty of the commissioners did not cease with the appointment of an agent, although selected with due care. They were bound to see that he performed his duty, and it appears by the evidence that they were repeatedly notified of his negligence.
3. In the original mortgages to Lobdell, the mortgagor is required to keep the buildings on the premises insured for the ben efit of the mortgagee and his assigns. Failing to do so, Lobdell could have effected insurance, and the premium would have been a proper charge. Fowley v. Palmer, 5 Gray, 549. The defendants, as assignees of Lobdell, had the same right, and the master properly allowed in the account the premiums paid.
4. The master allowed the defendants five per cent, upon the rents actually collected by them, and states that this is all that, in his opinion, the services are worth, and disallowed the defendants’ claim of five per cent, on the rents charged. This allowance to the commissioners, during the time they were in default, was within the master’s discretion, on the evidence before him, and we see no reason to disturb his finding. Adams v. Brown, 7 Cush. 220, 222. And it does not appear that he erred in not finding a larger sum due, as contended by the defendant corpo ration.
6. Nor can the exception be sustained, that the master has failed to charge rent at the rate of $800 for each house, which sums would have been received from other parties, had they been accepted as tenants by the defendant corporation. Upon the evidence before him, he finds that they were responsible parties, and willing to take the premises at that rent. He also finds that the plaintiff notified the defendant, both orally and by letter, that tenants could be had at that rent, who would take the houses on leases, but the defendant took no action in the matter. It does not appear, either in the oral or written notices, that the names of the proposed tenants were mentioned, or the authority of the plaintiff to make the offer stated, or any means afforded to ascertain the responsibility of the parties. It may well be questioned whether the notice was sufficiently explicit to impose any duty on the defendant. See Hubbard v. Shaw, 12 Allen, 120. But the master was not bound to base his computation of the additional sums to be charged the defendant corporation for rents, which it could with proper care have received, or to find what was a fair and reasonable rent of the premises, solely upon the amount of rent which might have been received if these parties had become tenants. Those questions were to be decided by him upon all the evidence, and we have already stated that we see no reason to set aside his findings. Having charged the defendant corporation not only with all the rents actually received, but with such further sums as should by due diligence have been received while Dingley was agent, and having also charged the defendant corporation with the rents actually received afterward, which he finds to have been fair and reasonable, the plaintiff has had his full right secured to him.
7. We see no reason for departing from the rule that simple interest only should be computed on the mortgage debt. This is the established law and practice. Reed v. Reed, 10 Pick. 398. Nor can it affect the defendant’s rights in any way that the debt was paid without any contribution from the plaintiff.
Having considered all the questions of law argued at the bar, the entry must be Decree affirmed.