White v. MaynardWhite v. Maynard
- Reporters:
- Before:
- Rowell
The opinion of the court was delivered by
Rowell, J.Thе first question made is as to the construction of the mandate. The orator claims that .the words, “ after deducting all indorsements,” relate as well to the notes owned by the defendant James Maynard as to the notes belonging to the orator ; while the defendants claim thаt said words relate only to the notes belonging to the orator. Thе mandate is a little ambiguous on its face in this respect; but in view of thе fact that the Judge who drew it was the Chancellor who made the dеcree, whereby the construction claimed by the defendants wаs given to it; and in view of the further fact that the payments made and indorsed on three of the notes owned by said Maynard, as found by the master, were made and indorsed under such circumstances that equity would nоt apply them in reduction of said notes, but would treat them as payments towards the purchase thereof, — we hold that the construction contended for by the defendants is the correct one.
It is claimed that said Maynard should account for rents and profits from November 10, 1875, the time when Cutting and wife went into possession of the mortgagеd premises. But they did not go into possession thereof under Maynard, but under Libby, who, being “ hard up,” conveyed the equity of redemption to Mrs. Cutting, and Cutting “ stepped into Libby’s shoes.” Maynard never claimed nor received any of the rents and and profits, *580but Cutting and wife took the same to themsеlves as owners of the equity of redemption. Nor can Maynard bе made to account from the timq his decree became absolute on March 1, 1879, to the time he conveyed the premises tо Mrs. Cutting on May 29, 1880. Actual possession, either in person or by a tenant, оr a receipt of profits, or some fraudulent use of his powеr as mortgagee to the loss of a subsequent incumbrancer, must be shown, to render a mortgagee liable to account. Dawson v. Drake, 30 N. J. Eq. 601. But if a mortgagee be in possession, or acts mala fide in regard to subsequent incumbrancers, or refuses to enter, but suffers the mortgagor to take the profits, and protects his possession by means of his mortgage, he will be charged, not only with all profits received, but with all that he might have received by the use of reasonable diligence and prudence. Demarest v. Berry, 16 N. J. Eq. 481; 2 Jones Mort. s. 1121. Prior to May 29, 1880, Maynard did not take’ possession, either in рerson or by a tenant. He made no fraudulent use of his power as assignee of the first mortgage as against the orator. The orator had a light to take possession of the premises at any time as against all persons but Maynard, and could have taken possession as against Maynard if he had not objected. But he never attempted to take possession, and was not prevented by Maynard from taking possession. He seems rather to have been rеlying on the promise that he claims Maynard made to pay his notеs.
But when Maynard conveyed the premises by warranty deed to Mrs. Cutting on May 29, 1880, he must be deemed thereby to have taken possession, or to have done an act equivalent thereto, and to have аsserted his superior title in such a manner as to prevent the orаtor’s taking possession; and he must account from that time, and will be allowed for all necessary repairs from the same time. The mаster reports nothing for necessary repairs since that time except an item of five dollars for digging about twenty rods of drain from the house in the summer of 1880, which he finds was a necessary expense. ■
Decree reversed, and cause remanded, with mandate.
Ross, J., was absent.