Stevens v. Miner

110 Mass. 57 | Mass. | 1872

Chapmaít, C. J.

The original title to the mortgaged premises was in Jonathan C. Stevens, who made the three mortgages in question. He conveyed the equity of redemption to Fuller, Dixon and Smith in 1843, and they conveyed it to the plaintiff in 1844.

At May term 1846, the plaintiff brought a bill against Miner to redeem the third mortgage. Miner set up his right under the first, which he had paid, and which had been assigned to him. The plaintiff obtained a decree for redemption as to the first and third mortgages, upon payment of $6759.35, with interest, within a time specified, but did not pay it, and judgment was thereupon rendered against him for costs.

It is now contended, that, as there was no formal decree dismissing the bill, the suit was not so terminated as to be a bar to a new bill to redeem. It is true that the usual form of a final decree for the defendant in a suit in chancery includes a dismissal of the bill. In a suit for redemption of a mortgage, the English form of a decree is that the bill be dismissed, unless the plaintiff pays a certain sum within a certain time. So in New York. Waller v. Parris, 7 Paige, 167. Or, if omitted, a final order dismissing the bill will be obtained as of course. 2 Dan. Ch. Pract. (3d Am. ed.) 1017.

But none of the cases cited from our reports decide that such a decree is necessary in a suit for redemption, and all that seems to be necessary is a decree or judgment which in substance terminates the suit upon its merits. The whole subject of redeeming mortgages is regulated in this state by statute. The character of the right, the methods of foreclosure and redemption, are all regulated in this manner. When a mortgagor obtains a decree of redemption, his right is thereby defined, and no other or different right remains to him. It is the right of which he must avail himself if he would redeem at all, and it is cut off when it expires by the terms of the decree. It is not necessary to pursue all the forms of the English practice in obtaining a final decree. By the Rev. Sts. e. 81, § 9, which were in force when this suit was pending, power was given to the court to “ award all such judgments, decrees, orders and injunctions, to issue all such executions and other writs and processes, and to do all such other acts as may be necessary or proper to carry into effect all the powers ” given them. In many respects our practice conformed to that in actions at law, and differed from the English practice. It was so as to the entry of final decrees and judgments. Clapp v. Thaxter, 7 Gray, 884. In a case like this, a judgment for the defendant for costs, upon the failure of the plaintiff to comply with the terms of a decree for redemption, includes a decree upon the merits, followed by a judgment that substantially terminates the suit, and cuts off the right, in conformity with the terms of the statute. There is nothing in this case to indicate that it was without prejudice, or was intended to leave the suit pending.

The equity of redeeming the first and third mortgages having thus expired, it is not material to consider the effect of the entry for foreclosure, or of the action against Jonathan C. Stevens.

The report in this case was committed to the master to find and report the amount of land contained in each of the deeds and mortgages mentioned in the interlocutory decree. He finds the several lines, and also finds that all the land included in the second mortgage, which this bill is brought to redeem, is also contained in the first or third mortgage. The various conveyances are stated, together with the testimony which was offered to explain them. Much testimony of such a character was necessary, as the deeds contained many latent ambiguities. We cannot see that any of the testimony was inadmissible or impertinent, or that the master’s construction of the deeds was erroneous. All reasonable presumptions are to be made in favor of the report. Dean v. Emerson, 102 Mass. 481.

The titles under the first and third mortgages having become absolute under the judgment in the plaintiff’s bill in equity brought in 1846, there remains nothing under the second mortgage which is regarded by the plaintiff’s counsel as worth redeeming.

Master's report confirmed, and bill dismissed, with costs.