218 Mass. 129 | Mass. | 1914
This case comes before us on a bill of exceptions taken at a hearing on a bill in equity brought under R. L. c. 178, § 39, to redeem land from an execution sale.
1. Exceptions having been taken at the hearing, the judge had no power to enter a decree. McCusker v. Geiger, 195 Mass. 46. We treat the so called decree as an order for a decree. The appeal from the so called decree is not before us and must be dismissed. The questions raised by the exceptions will be considered.
2. The plaintiff asked the judge to rule as matter of law that sums paid for “labor in cutting down silver leaf poplar bushes, and clearing [the] land of dead leaves and bushes from former cuttings” were not “reasonable expenses incurred for repairs and improvements” within R. L. c. 178, § 33. The plaintiff in his brief has assumed that the case was heard on bill and answer. But there is no statement to that effect in the bill of exceptions; and the so called decree referred to in the bill of exceptions states that the cause was heard “upon bill and answer and was submitted on evidence and argument by counsel.” We take the case as a case decided on evidence introduced by the parties. It is stated in the bill of exceptions that the land in question “was wild and uncultivated land, given over at the time of the purchase by the defendant to weeds, beach grass and bushes.” We cannot say as matter of law, especially in the absence of the evidence on which the ruling was made, that such expenses are not “reasonable expenses incurred for repairs and improvements.” It would seem pretty plain even in the absence of evidence that wild land would deteriorate unless silver leaf poplar bushes were cut down and dead leaves and bushes from former cuttings were taken away. See in this connection Reed v. Reed, 10 Pick. 398; Merriam v. Goss, 139 Mass. 77.
3. The next ruling asked for was that interest could not be allowed to the purchaser at the execution sale on taxes paid by him while he was in possession, or on the sums (just referred to) incurred in cutting down poplar bushes and clearing the land from dead leaves and bushes from former cuttings. The plaintiff’s argument in this connection is that the right of redemption which he is pursuing is a statutory one, and that the statute (R. L. c. 178, § 33) which defines the sums to be paid in order
4. The next exception is to the refusal of the judge to rule that the defendant was not entitled to costs because he had not tendered an account before the beginning of this suit. By the true construction of R. L. c. 178, § 41, the matter of costs is left to the discretion of the court, except in the cases there specifically stated. This is made plain by the wording of the original act (Rev. Sts. c. 73, § 29), and by the note of the commissioners as to it. Rev. Sts. c. 73, § 29, provides that: “The court may, upon such bill for redemption, award costs to either party, as equity may require.” In their note to Rev. Sts. c. 73, §§ 27, 28, 29, the commissioners say: “The creditor should never be required to pay costs, unless by his own unjust and unreasonable conduct he has compelled the debtor to resort to the law for redress; and the court, in the exercise of their discretionary power, would no doubt allow him his costs, in all cases when a suit was unnecessarily brought against him.” This exception must be overruled.
5. The plaintiff’s next exception is to the ruling that the costs to which the defendant is entitled must be deposited with the clerk for the use of the defendant. This provision follows the precedents in decrees for the redemption and foreclosure of mortgages. See 2 Dan. Ch. Pract. (5th Am. ed.) 997; Seton’s Judgments & Orders, (7th ed.) 1825, 1832, 1852. The so called decree is not so favorable to the defendant as it ought to be. It should provide that if the amount specified was not deposited within the time specified the bill should be dismissed with costs.
6. The date of the so called decree, which in legal effect is an order for a decree, is of no consequence. If it can be construed
To avoid misapprehension we call attention to the fact that the amount of the costs to be paid to the defendant should be stated in the decree; East Tennessee Land Co. v. Leeson, 185 Mass. 4; and that if the sums to be paid by the plaintiff for the redemption of her estate are not deposited by her in accordance with the decree for redemption, a final decree stating that fact and dismissing the bill with costs should be entered. Tetrault v. Labbe, 155 Mass. 497, and cases cited.
Appeal dismissed. Exceptions overruled.