81 Miss. 386 | Miss. | 1902
delivered the opinion of the court.
The chancellor erred in charging the appellant with the rental value of the property. The defendant should have been charged only with what it actually received,- or ought by the exercise of reasonable diligence to have received.. The rule is thus stated in 2 Jones, Mortgs., sec. 1123: “As a general rule, the mortgagee in possession is held to the exercise of such care and diligence as a provident owner in charge of the property would exercise; but he will not be held accountable for anything more than the actual rents and profits received, unless there has been willful default or gross negligence on his part. It is the fault of the mortgagor that he lets the land fall into the hands of the mortgagee, and the mortgagor should be required to prove actual fraud or negligence on the part of the mortgagee, before he can be charged for more than his actual receipts of rents and profits. He will not be held to account according to the value of the property, but for what he should, with reasonable care and attention, have received. ” It is not a correct view, on the facts of this case, to hold the appellant as
We think that the chancellor- erred in one other respect; that is to say, in not crediting the appellant with $ 13, expenses of the foreclosure sale. The principle announced in Whitcomb v. Harris, 90 Me., 206 (38 Atl. 138); and Means v. Anderson, 19 R. I., 118 (32 Atl., 82), the last of which is a case of gross, actual fraud, proceeded upon the idea that wherever anything is due under the mortgage, and the debtor fails to pay what is legally due, and allows a foreclosure sale to be had and possession taken without objection, he ought, when coming to redeem, to be required, as one of the conditions, to pay the necessary expenses of the foreclosure sale — a proceeding which he has allowed to take place without objection. We think this principle finds peculiarly just application in the facts of this case. Here, as the accounting shows, is something legally due; yet the mortgagors did not pay anything, allowed the foreclosure sale to take place, allowed the appellant to go
Reversed and remanded.