time he took the assignment of it, and hold him to account for the rents and profits from that time: 10. But not for previous rents, &c. is he liable, no demand of dower having been made on him before that time, and the statute 1816, ch. 84, entitling her to rents and profits until her dower be assigned, being to give her a remedy only against her husband's heirs, as it seems: 11. Where the interest is payable half yearly and the rents and profits are considerable, interest is computed on them semiannually and making rests: 12. Such assignee allowed five per cent. commission for his care and trouble in collecting the rents, &c. and managing the estate. March term, 1828, again considered: stated that no such commission is allowed in the English courts. VOL. IV. Сн. 112. Art. 2. Con. 277, Saunders Frost. Bill in equity to redeem lands, brought by subsequent inort-5 Pick. 259– gagees, from two prior mortgages, and to compel the prior and Daniel mortgagee to release the two first mortgages. Facts: April Winship v. 24, 1821, Joseph Winship gave to the deft. two promissory notes for $300 each, one payable in three years and the other in six, with interest annually: June 14, 1821, Jos. Winship made his mortgage to the deft. to secure payment of said notes. February 11, 1822, Jos. Winship made a second mortgage to one Carew, to secure him as a surety on a note given by Jos. Winship to one Pynchon : September, 28, 1824, Carew assigned this mortgage to the deft., who paid the $200 then remaining due to Pynchon: June 16, 1823, Jos. Winship made a third mortgage to Carew and the two plts., to secure him and Dan. Winship, as his sureties on a note he gave to the Hartford bank, and Carew, as his surety on his note to the Springfield bank, and other notes-one to Saunders: September 20, 1825, Carew assigned to the deft., Frost, all his interest in this third mortgage, then all the mortgages vested in the deft. Dan. W. paid part of the note to the Hartford bank, and October 28, 1823, Carew paid the balance, $75; Carew paid all the note to the Springfield bank: May 31, 1826, Jos. Winship conveyed to the plts. all his remaining interest in the mortgaged premises, being his right to redeem August 5, 1823, the interest on said two first notes made to the deft., being unpaid, he took possession for condition broken, and continued in possession to the time of the commencement of this suit. During that period the rents and profits received by him, exclusive of fifteen dollars lost by an insolvent tenant, amounted to about $206; and the repairs, including insurance against fire and the expense of an aqueduct, aniount to about $50: April 26, 1826, the plts. tendered to the deft. $800 to redeem the two first mortgages. On these facts, held, 1. The two plts. had properly joined in the bill against the deft. to redeem the two first mortgages. VOL. IV. 2. The deft. could not be compelled to contribute to pay CH. 112. them off; and if he did not, and the plts. alone redeemed Art. 2. them, he could not avail himself of his third mortgage, but Con. the plts. could hold possession till reimbursed his proportion: 3. If the deft. elected to hold under his third mortgage, he should contribute to redeem the two first, in proportion as his interest in the third bore to the interest of the other two mortgagees: 4. The deft. could not apply the rents and profits to the third mortgage debt, he being in possession only for breach of condition of the first mortgage: 5. There being several conditions, and the mortgagee enters for the breach of one of them, the mortgagor, by tendering performance of that one prevents a foreclosure, and may have a decree for possession, unless the mortgagee, in answer, sets up his general right under the mortgage, or has declared he holds for the breach of another condition in which case a special decree may relieve the mortgagor from the effects of the breach for which the entry was made, and leave the mortgagee in possession of his legal rights: 6. The court has power, under the statute 1798, ch. 77, to decree according to the principles of chancery courts, whatever equity requires between the parties, so is the act: 7. The deft. was not bound to receive principal tendered not due, but was bound to receive the interest due, part of the sum tendered: 8. The deft. was bound to release quoad the condition tendered to be performed, so is the statute: 9. The deft. was not chargeable with the quarter rent lost by the tenant's insolvency, the deft. not being guilty of any negligence: 10. Rents received by the deft. were applied, as they accrued, to keep down the interest: 11. Deft. not allowed the insurance, but was for the aqueduct, it being necessary and expense small 12. A mortgage secures two sums payable at different times; and the mortgagee enters for the nonpayment of the first due, the mortgagor brings his bill to redeem, and when the other falls due he makes a new tender, he must file a supplementary bill and state in it the new tender. As to costs, see Costs, ch. 195, a. 2, s. 5. 5 Pick. 167, Battle v. Griffin, in a bill to redeem, was held to account, and it appeared the mortgage debt exceeded the value of the mortgaged premises, the deft. was allowed to set off the plt's. costs pro tanto against the mortgage debt. 25. Creditor may levy on the estate mortgaged; as where one gets judgment for his debt and extends his execution on land mortgaged for the same debt, and the debtor neglects one year to redeem after the extent, the estate is absolute in the King, adm'r. creditor, notwithstanding the mortgage. Decided on the 1 Greenl. 297300, Porter v. MORTGAGES. Con. Art. 2. mortgagor's bill and equity to redeem; and 2 Greenl. 339- VOL. IV, § 26. The mortgagee may have trespass against the mortgagor in possession for cutting down and carrying away trees, timber, &c. for the value thereof. The plt. sold the land September 15, 1819, to one Bickford in fee, taking a mortgage at the same time, to secure payment of the purchase money, and Bickford's notes payable in two years and a half, December, $330. He paid one, &c. the next spring. 1820, he sold all the timber on the land, to the value of $230, to Pike, &c., all defts., who cut it down and converted it to their own use without the plt's., the mortgagee's, license, Bickford remaining in possession till after the cutting, when the plt. entered for condition broken, the residue of the purchase Stowell v. Facts agreed. Judgment for the plt., ers, 2 Greenl. money being unpaid. the mortgagee, for the value of the timber and costs. Pike and oth 387-390. Jenks & al. 3 con. And 17 Mass. R. 419-429, Parsons v. Wells, &c. ART. 3. Writ of entry. Decided a mortgagee of a satisfied mort- Con. gage cannot at law recover possession against the mortgagor 3 Mason, 520or persons claiming under him. By the law of the State of 532, Gray v. Maine, the satisfaction was specially pleaded. The mortgage was not discharged in the registry of deeds, nor by a release. Decided on the statute of Maine, 1821, ch. 39. The action was not on the mortgage. See statute of Massachusetts 1821, ch. 85. § 27. Bill in equity to redeem. If the legal and equitable estates unite in the mortgagee, the mortgage will be considered as subsisting or not, according to his intention, actual or presumed 2. After a bill is brought to redeem, the court will not permit the officer, who executed the writ of habere facias under which the mortgagee entered, to amend his re- 3 Greenl. 260– turn, by stating an earlier day of service for the purpose of 269, Freeman foreclosure. As to the merger of the mortgage title, see ch. v. Paul, a dep. 114, a. 28, s. 12, $28. No merger. Equity of redemption on execution, afterwards the mortgagee entered under a judgment and writ of possession for condition broken, and before foreclosure conveyed all his interest in the land to the mortgagor. Held, that as against the purchaser of the said equity, this should sher. VOL. IV. operate as an assignment and not as an extinguishment of the CH. 112. mortgage. If the mortgagor remain seised of right to redeem Art. 3. and the mortgagee release all his interest to him, this extinCon. guishes the mortgage, but after the right to redeem is vested in a third person, the mortgagee's release to the mortgagor operates as an assignment of the mortgage, as the mortgagor in such case has no estate in which the mortgage can merge; and the case is the same if the mortgagor has the right to redeem the equity of redemption sold on execution. 29. The mortgagee's power to sell, in New York, and forclose the right to redeem. Sarah Wilson and others, appellants, and heirs of William Wilson v. Robert Troup and others, respondents, 2 Cowen, 193-242. Appeal from the court of chancery to the court of errors, on the mortgagor's bill to redeem. Facts in substance: the statute of New York, (1 R. L. 372,) respecting mortgages, recoguises, as below, the mortgagee may have power to sell, and such power had been usually given in New York: Sir William Pultney purchased, in that State, a large tract of land, and opened a land office. Charles Williamson was for a time his agent to manage and sell-succeeded by said Troup, and also he became Pultney's administrator, on his death, in 1805. Previous to October, 1796, said Williamson covenanted to sell and convey to said W. Wilson, living in Pennsylvania, six thousand acres, part of said land, for £795, New York currency, and for this sum to take a bond and mortgage. Oct. 6, 1796, said Wilson gave a power of attorney, in the form below, to take said conveyance and give said bond and mortgage to Daniel Faulkner. He did accordingly, but in the mortgage to Williamson (Oct. 21, 1796,) F. inserted a special power to sell the land and raise the money due, in default of the mortgagor, &c., to pay, &c. Statutes of New York gave the mortgagee, his assigns, &c. power to foreclose in a summary way without a bill in equity. Williamson assigned this mortgage to Pultney. It was the practice, also, of the Pultney land office for the mortgagor to insert in his mortgage deed the usual power to sell. The mortgage was recorded October 27, 1796, but not the power to F, though that was recorded before the sale. Mr Cowen, in his report, leads the reader to think from thirty to fifty questions (or points) were made and decided; but Sutherland, J. correctly made but four: 1. Had Faulkner authority to insert, as he did, said power to sell? 2. Was F's. power of attorney legally recorded before the sale under the mortgage? 3. As the mortgagee or his assignees had sold parts of the mortgaged premises in fee, with warranty, before the foreclosure could there be an after foreclosure under the power? 6 4. Could Troup be a legal purchaser at the foreclosure? The general question was, if the sale was legal and so the equity of redemption legally foreclosed. The chancellor held it was, and his decree was unanimously affirmed in the court of errors. As to the first question the power to Faulkner authorized him to receive a deed from Williamson, and to sign, &c. to him a mortgage and bond for the consideration money, and to do and perform all things necessary and lawful to the obtaining a title to the said land, and securing the consideration money therefor, to the said Williamson.' Sutherland, J. clearly showed by reasons given and authorities cited, that this power, in connexion with the law and usage of the State and the Pultney land office, authorized Faulkner to insert in the mortgage the power to sell. This was the main question, and stated a power must be construed according to the intentions of the parties. These may be learnt from extraneous circumstances, these be proved by the laws and writings in the case and parol evidence under the known limitations. Authorities, Sugden on Powers, 459; 1 Br. Ch. C. 395; 7 Ves. Jr. 547; Doug. 292; 2 Ves. Jr. 336; Skinner, 27; 1 Coke, 175, a. &c. 2. Recording the power. Savage, C. J. gave a correct opinion, saying it was recorded before the sale first then correctly proved and again recorded. Referred to Bergen v. Bennett, 1 Caines Cas., in error, 17, where decided that the omission to record the power will not affect the proceedings as between the mortgagor and the mortgagee. The recording is for the purchaser's benefit. Third question: sale of part in fee previous to the foreclosure. Sutherland, J. well observed, the mortgagee, or his assignee, retained the debt and the power to sell each entire, and the power being indivisible, and the said right to foreclose was subject to the sales previously made and operated for the benefit of the purchasers, and as they were not assignees under the mortgage, it was not necessary they should be made parties to the foreclosure. Fourth point: Troup's power to purchase was truly answered in a few words. The mortgagee may purchase under a power, though he had conveyed a part, for the 10th section of the act concerning mortgages, (1 R. L. 375,) provides that no title to mortgaged premises, derived from any sale made in virtue of a special power, shall be questioned, or impeached, or defeated, either at law, or in equity, by reason that the mortgaged premises were purchased in by the mortgagee, or his, or her, assignee, (or assignees,) or for his, her, or their benefit, or account.' The mortgagee's grantees are assignees pro tanto. Trustee may purchase for the benefit of his cestui que trust, and he only can question the purchase. Vol. IV. Cн. 112. Art. 3. Con. |