Wilcox v. Cheviott

• Decision Date: 06 December 1898
• Citation: 92 Me. 239,42 A. 403
• Parties: WILCOX v. CHEVIOTT.
• Court: Maine Supreme Court

42 A. 403

92 Me. 239

WILCOX

v. CHEVIOTT.

Supreme Judicial Court of Maine.

Dec. 6, 1898.

(Official.)

Report from supreme judicial court, Aroostook county.

Action by Judson Wilcox against Carl C. Cheviott on account for rents and profits under foreclosure of mortgage. The jury returned a verdict of $75, by agreement, for the plaintiff, subject to the opinion of the court as to whether the action is maintainable. Thereupon the parties agreed to report the case to the law court. They stipulated "that, if the law court shall be of the opinion that the action is not maintainable, the verdict for plaintiff is to be set aside, and judgment rendered for defendant; otherwise the verdict for plaintiff is to stand." Judgment for defendant.

Argued before PETERS, C. J., and EMERY, HASKELL, WISWELL, SAVAGE, and FOGLER, JJ.

L. C. Stearns and W. B. Hall, for plaintiff.

Geo. H. Smith, for defendant.

SAVAGE, J. This case comes up on report of the evidence. A verdict for the plaintiff was taken, by consent, with the stipulation that, "if the law court shall be of opinion that the action is not maintainable, the verdict is to be set aside, and judgment rendered for the defendant; otherwise, the verdict is to stand."

From the report we gather the following facts: January 7, 1895, the plaintiff purchased of one Babkirk a farm and woodland, subject to a mortgage previously given by Babkirk to the defendant, to secure the payment of $500, according to the tenor of certain promissory notes. May 13, 1896, the notes being overdue and unpaid, the defendant commenced foreclosure of the mortgage, by peaceable entry, in accordance with the statute. The defendant remained in possession of the mortgaged premises, receiving the rents and profits, from that time until December 21, 1896, when he sold and assigned the mortgage and notes to William C. Spaulding. April 1, 1897, the plaintiff gave the defendant written notice to account to him for the rents and profits of the farm while in his possession. The defendant told him that Spaulding then owned the mortgage, and that he (the defendant) had nothing to do with it. The plaintiff afterwards, having still the right to redeem, gave Spaulding a like notice. Spaulding refused to account for rents and profits, and required payment of the mortgage notes in full. Thereupon, May 1, 1897, the plaintiff paid Spaulding the full amount of the mortgage notes, interest, taxes, and costs of foreclosure, no deduction being made for rents and profits. The plaintiff now brings this action at law to recover the rents and profits of the farm while in defendant's possession.

We think the action cannot be maintained. It is well settled that a mortgagor's remedy for the redemption of real estate lies only in a court of equity. Pearce v. Savage, 45 Me. 90; Cole v. Edgerly, 48 Me. 108; Randall v. Bradley, 65 Me. 43. In jurisdictions where the doctrine prevails, as in this state, that the mortgage conveys the legal title (Gilman v. Wills, 66 Me. 275), the right of the mortgagor to an account of the rents and profits received by the mortgagee is purely and exclusively of equitable cognizance. At law the mortgagee cannot be made to account. 2 Jones, Mortg. § 1115. He is the legal owner of the estate, and takes the rents and profits in that character. Unless the premises are redeemed, he is not bound to account for them in any proceeding. Bank v. Fox, 19 Me. 99. The mortgagor has a right of redemption only in equity, and the right to an account is incident only to this. Jones, supra; Seaver v. Durant, 39 Vt. 103. Therefore, upon redemption, when the mortgage is extinguished, the incident of the right to an account dies with it. Accounting cannot afterwards be enforced either at law or in equity. In a bill to redeem, a mortgagor has ample remedy to enforce accounting, and even to compel the mortgagee to refund, if there has been overpayment. Farwell v. Sturdivant, 37 Me. 308.

Such are the rules of the common law, and they have not been modified by our statutes so as to affect this case. Rev. St. c. 90, § 2, recognizes the mortgagor's equitable right to an accounting for rents and profits received by the mortgagee in possession, in case, and only in case, the mortgage is redeemed, and provides that "they shall be deducted from the sum due on the mortgage," not that they shall be recoverable from the mortgagee after redemption. In section 22 of the same chapter it is further provided that, when money is brought into court in a suit for redemption, the court may deduct "therefrom the rents and profits with which the mortgage is chargeable." In the same section also is the provision that "the person to whom money is tendered to redeem such lands, if he shall receive a larger sum than he is entitled to retain, shall refund the excess." And under this special provision it has been held that an action at law will lie. Bragg v. Pierce, 53 Me. 65. But this will not aid the plaintiff in this case, because, if otherwise applicable, this statute only affords a remedy against the person to whom a tender has been made, and who has received the money. No tender has been made to the defendant He received no money from the plaintiff.

Other than this particular paragraph in section 22, all the statute provisions seem to contemplate equitable proceedings in compelling an accounting, and the deduction of rents and profits from the sum due on the mortgage. The implication is that the deduction must be made at redemption, not afterwards.

The only cases we have been able to find where actions at law for rents and profits or for overpayments were sustained are those which were permitted by special statutes (Bragg v. Pierce, supra; Wood v. Felton, 9 Pick. 171), or where the overpayments were made under such circumstances of compulsion as to amount to duress in law (Close v. Phipps, 7 Man. & G. 586).

But, even were the doctrine otherwise than as we have stated, there are other reasons why this action cannot be sustained. So far as the evidence shows, the payment made by the plaintiff was voluntary. The plaintiff asked for an accounting. Spaulding refused to...