Bernard v. Toplitz

• Decision Date: 29 November 1893
• Citation: 160 Mass. 162,35 N.E. 673
• Parties: BERNARD et al. v. TOPLITZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

160 Mass. 162

35 N.E. 673

BERNARD et al. v. TOPLITZ.

Supreme Judicial Court of Massachusetts, Worcester.

November 29, 1893

COUNSEL

Warren & Brandeis and Joshua E. Beeman, for plaintiffs.

Frank P. Goulding, for defendant.

OPINION

KNOWLTON, J.

This is a suit to redeem an instrument in the nature of a mortgage, a copy of which is annexed to the plaintiffs' bill. The money secured by the instrument was not payable until February 15, 1893, and the bill was filed on August 2, 1892. At the time of the hearing, the plaintiffs were entitled to redeem, and the question is whether a decree for redemption can be entered in this suit, or whether their right to redeem can be enforced only in a suit brought after it came into existence. We are of opinion that this action cannot be maintained. It is a general rule that the rights of parties in litigation are to be determined as of the time when the action was brought. The exceptions to this rule relate only to supplemental, incidental, or technical matters, which are not of the substance of the plaintiffs' right. If the original bill is sustainable, a supplemental bill may be filed, or, under our practice, the bill may be amended by alleging matters occurring subsequently, so as to present facts which will enlarge the extent or change the kind of relief. 1 Daniell, Ch.Pr. (3d Amer. Ed.) 1594, and notes; Chandler v. Pettit, 1 Paige, 169. So the appointment of an executor or an administrator, made while a suit in equity is pending, will relate back to the death of a testator or intestate. Dearborn v. Mathes, 128 Mass. 194; Moses v Levi, 3 Younge & C.Ch. 359; Humphreys v. Humphreys 3 P.Wms. 349. In suits by the vendor for specific performance, a decree may sometimes be entered for the plaintiff, although he was not able to furnish a good title until after the commencement of the suit. Bank v Eldridge, 115 Mass. 424, 427, 428; Wynn v. Morgan, 7 Ves. 202; Dutch Church v. Mott, 7 Paige, 77, 84, 85. But in these cases the time when the deed should be delivered is not of the essence of the contract, and the controversy relates to other matters. In a suit brought for the redemption of a mortgage before the time for the performance of the condition, it is otherwise. If the condition is performed in accordance with the terms of the mortgage, there is never any equity of redemption to be enforced by a suit, for the mortgage becomes void, and the title of the mortgagor becomes absolute, by the contract itself. It has often been held that a suit for redemption of a mortgage cannot be maintained before the time for the performance of the condition, even though the mortgagor tenders performance of it before...