Boston & Worcester Railroad v. Haven

Chapman, J.

It is conceded that the plaintiffs have a right to redeem, and the case has been sent to an assessor to state an account of the sums due to the defendants as mortgagees, and also of the rents and profits due from them. Upon the coming in of his report, certain objections are made to some of the items therein stated.

1. The amount allowed for the superintendence and management of the property is objected to, and the cases of Tucker v. Buffum, 16 Pick. 46, and Gibson v. Crehore, 5 Pick. 146, are cited in support of the objection. But this case is quite unlike either of them. The property consists of a wharf, railroad and warehouses, and its profitable management requires much labor and expense. In making the mortgage, the parties took into consideration the peculiar nature of the property, and provided that if the mortgagees, who are mere trustees, should take possession for condition broken, they might “ by themselves, their agents or substitutes, duly constituted, have, use and enjoy the same, making from time to time all needful- repairs, alterations or additions thereto, and, after deducting the expenses of such use, repairs, alterations and additions, apply the proceeds thereof to the payment of the principal and interest,” &c. It also contains a provision that they “ shall be entitled to receive proper compensation for every labor or service performed in the discharge of said trust, in case they shall be compelled to take possession of said premises, or any part thereof, or to manage the same.” All the sums which the assessor has allowed for services and expenditures come within these stipulations, and he has found that the charges are reasonable.

2. The charges for money paid to counsel for legal services ought not to be allowed. "It is suggested in behalf of the defendants that they were paid for the benefit of the mortgagors as well as of the mortgagees. But it is obvious that the litigation which has been had in this court has been for the exclusive benefit of the bondholders, of the one part, and for the benefit of the mortgagors and their lessees, of the other part. As the trustees have paid these sums for the benefit of the bondholders, the amount should be charged to them and not to the plaintiffs. It is like an ordinary case where a mortgagee brings a suit, and the mortgagor contests the whole or a part of the claim, whereby the mortgagee is put to the expense of employing counsel. Legal costs are all that the mortgagors are liable to pay in their controversy with the mortgagees.

3. The charges for insurance should not be allowed. These were for the benefit of the bondholders, but not for the benefit of the mortgagors or the plaintiffs. Insurance procured by a mortgagee is not chargeable to the mortgagor, unless it is procured at his request or by his agreement. Saunders v. Frost, 5 Pick. 270.

4. A question is raised as to the decree that should be entered. It appears that the principal sum is not yet due; and, according to the terms of the mortgage, upon payment of the arrears of interest, the plaintiffs ought to be restored to the possession of the premises, and to hold the same so long as they continue to perform the condition of the mortgage. The amount to be deducted for rents and profits cannot now be ascertained, because it depends partly upon what shall be received by the defendants upon the judgment to be rendered in two pending suits ; one against these plaintiffs, and the other against Adams and others. This case must be continued till that amount shall be ascertained, and in the mean time the assessor’s report should be recommitted to him, to make a report that shall include the rents and profits and expenses up to the time when the decree shall be entered, and then stand for further direction.