Donohue v. Chase

• Decision Date: 23 June 1885
• Citation: Donohue v. Chase, 139 Mass. 407, 2 N.E. 84 (Mass. 1885)
• Parties: Julia Donohue v. James E. Chase
• Court: Supreme Judicial Court of Massachusetts

139 Mass. 407

2 N.E. 84

Julia Donohue v. James E. Chase

Supreme Judicial Court of Massachusetts

June 23, 1885

Argued March 23, 1885

Essex.

Bill in equity to redeem certain premises in Haverhill from six mortgages, held by the defendant as assignee. Hearing, upon exceptions by both parties to the report of a master, before Devens, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.

Decree accordingly.

C. G Saunders, for the plaintiff.

C. P Thompson & G. B. Ives, for the defendant.

Colburn J., absent. C. Allen, J.

OPINION

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 this subject were right or wrong. The exceptions of both parties as to the several items of insurance are therefore overruled.

2. It appeared from the master's report, that the rates of interest reserved in the mortgage notes varied from seven to twelve per cent. The master found that, on a certain date, the plaintiff procured an offer to be made, on her behalf, to the defendant to pay the amount due upon the notes, and that she had made arrangements to raise the money necessary therefor, and was prepared at that time to pay the amount due; and that the defendant refused to accept the same except upon the condition that the value of certain buildings belonging to the defendant, but annexed to the land, should also be paid to him. The master computed interest on the notes at six per cent from the date of this offer.

Interest at the rate of six 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, above cited. Minot v. Sawyer, 8 Allen 78. Smith v. Robinson, 10 Allen 130. By the Pub. Sts. c. 181, § 22, "the person 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 and payable on the mortgage, and shall perform or tender performance of every other condition contained therein." By § 23, "if the mortgagee or any person under him has had possession of the premises, he shall account for the rents and profits," &c. 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 & Maine Railroad, 6 Allen 262, 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 secure the payment of an excessive rate of interest from the...