Donohue v. Chase

• Decision Date: 23 June 1885
• Citation: 139 Mass. 407,2 N.E. 84
• Parties: DONOHUE v. CHASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

139 Mass. 407

2 N.E. 84

DONOHUE

v.CHASE.

Supreme Judicial Court of Massachusetts.

Filed June 23, 1885.

This was a bill in equity brought by the plaintiff, the mortgagor of certain premises, to redeem said premises from six successive mortgages, all held by the defendant, who was assignee of the original mortgagees, and had been in possession. The defendant denied the plaintiff's right to redeem, claiming that the fourth mortgage had been foreclosed by a sale under the power therein contained. The plaintiff claimed, however, that the sale was invalid; and the court so held, sustaining the right of the plaintiff to redeem. After this decision the case was referred to a master to state the account, and determine how much the plaintiff should pay to entitle her to redemption. To this report both parties took exceptions.

D. & C. & C.G. Saunders, for plaintiff.

C.P. Thompson and G.B. Ives, for defendant.

C. ALLEN, J.

1. In determining whether the premiums paid for insurance are a proper subject of charge in the mortgagee's account, it is necessary to know what was the contract between the parties, if any, in relation to insurance. It is stated by the counsel for the defendant in his brief that three of the mortgages held by the defendant contained provisions upon the subject, but none of the mortgages are before us. The case having been submitted on briefs, without oral arguments, there has been no opportunity to clear the matter up; and, as neither party has taken pains to bring before us the necessary facts, which an inspection of the mortgages would disclose, we have no means of determining whether the master's rulings on the subject were right or wrong. The exceptions of both parties as to the several items of insurance are therefore overruled.

2. Interest at the rate of 6 per cent. per annum is the amount with which, under the facts disclosed, the mortgagor should be charged after her offer to redeem. In an action to foreclose a mortgage, the conditional judgment is for the amount due according to equity and good conscience. Holbrook v. Bliss, 9 Allen, 69. In a bill to redeem, the amount to be paid is to be ascertained by the same rule. Hart v. Goldsmith, 1 Allen, 145, 148;Freeland v. Freeland, 102 Mass. 475, 480. Accordingly, in several cases the mortgagor was held entitled to the benefit of the statutory penalty for usury in reduction of the sum payable on his mortgage. Hart v. Goldsmith, ubi supra; Minot v. Sawyer, 8 Allen, 78;Smith v. Robinson, 10 Allen, 130. By Pub.St. c. 181, § 22, “the party entitled to redeem shall pay or tender to the mortgagee, or to the person lawfully claiming or holding under him, the whole sum then due or payable on the mortgage, and shall perform or tender performance of every other condition contained therein.” By section 23, “if the mortgagee, or any person under him, has had possession of the premises, he shall account for the rents and profits,” etc. These acts by the mortgagor and mortgagee are to be concurrent. Until the mortgagee has rendered his account, the mortgagor cannot make a tender of money in the manner in which a tender is made for the mere purpose of paying a debt, the amount of which the debtor is presumed to know equally with the creditor. Wherever there are mutual and concurrent promises, or mutual and concurrent acts to be done,-as, for example, the payment of the price of land, and the delivery of the deed,-the word “tender” does not mean the same kind of offer as when it is used in reference to the payment of a mere money debt. And so it has been often held. Smith v. Lewis, 26 Conn. 110; Cook v. Doggett, 2 Allen, 439;Smith v. Boston & M.R. Co. 6 Allen, 273;Gormley v. Kyle, 137 Mass. 189.

In the present case, the plaintiff appears to have done all that was necessary to be done by her before receiving the account of the mortgagee. By the mortgagee's announcement that he would not accept the money except upon compliance with his illegal demand, he waived the necessity of anything further on her part. He was in fault; and it would be inequitable to allow him to avail himself of his own wrongful act to...