110 Mass. 458 | Mass. | 1872
Whether in the absence of any agreement for payment of rent, a mortgagee, after entry to foreclose, may maintain an action against his mortgagor for use and occupation, was not
All the rent claimed here stands upon the same footing ; for although three years after entry and notice of foreclosure expired within the period covered by the claim, yet the pendency of a bill to redeem, resulting subsequently in a decree therefor, prevented the foreclosure from being complete until the expiration of the time for redemption allowed by the decree; when the defendant left the premises.
Assuming that such an action would lie, still the recovery would be had to the use of the parties according to their several interests. So long as any part of the mortgage debt remained due, the mortgagee would take the rents recovered, in trust to account for and apply towards its payment. Whenever the entire debt was paid, either from the rents or otherwise, the mortgagee could recover only for the use of the mortgagor, Gen. Sts. c. 140, § 30; and if the mortgagor himself was tenant of the land and defendant in the suit for rent, any further maintenance of it would result only in circuity of action. His right to the proceeds of the suit therefore prevents its prosecution against him.
A foreclosure of the mortgage, completed, is payment of the mortgage debt, in contemplation of law, to the extent of the value of the land at that time. If the mortgagee is not satisfied with it, he may recover any deficiency. But in such case the foreclosure is reopened, Gen. Sts. c. 140, § 36. A foreclosure would not, of itself, prevent recovery of rents previously due from the mortgagor. But such a recovery, against him, would be held to operate, like a recovery of part of the mortgage debt specifically, to open the foreclosure. Perhaps, in a suit for rents, it might not be necessary for the plaintiff to show affirmatively that the land was insufficient in value for the full payment of the mortgage debt. The mortgagor’s rights would all be secured by the opportunity to redeem, thus afforded him. In this case, however, it appears by the report that, at the time of the completed foreclosure, the value of the estate was greater than the whole sum due to the mortgagee; and that the mortgagee has sold and conveyed the
Judgment for the defendant.