George v. Wood

Chapman, J.

The principles on which this case depends are well settled in this commonwealth. It appears that the defendant’s mortgage includes the plaintiff’s lot and another called the Holmes lot. After making this mortgage to the defendant, the mortgagor Chessman made the plaintiff’s mortgage with the usual covenants of a warranty deed. Chessman thereby became bound to save the plaintiff harmless from the defendant’s mortgage, and as between them the plaintiff’s debt became a charge upon the Holmes lot only. Chessman then erected the building on the Holmes lot; and being annexed to the realty, it was held by the defendant’s mortgage as completely as the land on which it stood. While the property was in this condition, Chessman mortgaged the Holmes lot to Holmes, who took no better title as against the plaintiff than Chessman had. Chase v. Woodbury, 6 Cush. 143. Bradley v. George, 2 Allen, 392. Welch v. Beers, 8 Allen, 151. If Holmes had redeemed the defendant’s mortgage, he would have had no claim on the plaintiff for contribution. If the plaintiff had redeemed it, he would have had a claim on the Holmes lot for the whole.

The defendant entered upon both lots, as he had a right to do for foreclosure. Before the right of redemption expired, the plaintiff brought the present suit to redeem his lot, but Holmes allowed the foreclosure to be completed as to his lot. By this foreclosure the title to the Holmes lot became absolute in the defendant, and was thereby applied, at its value, to the payment of the defendant’s debt. West v. Chamberlin, 8 Pick. 336, Hedge v. Holmes, 10 Pick. 380. To that extent the plaintiff’s lot was thus relieved from the incumbrance. But as the defendant had not been in actual possession, taking the rents and profits, until his foreclosure was perfected, he is not bound to account for them. Hunt v. Maynard, 6 Pick. 489. After the land became his, the rents and profits were his by virtue of his ownership, and the plaintiff has no right to an account of them.

By the application of this land to the payment of the debt, the plaintiff has had all the benefit of it to which he is entitled. He is entitled to redeem his own lot by paying the balance due on the debt, the value of the Holmes lot being deducted from the debt at the time of perfecting of the foreclosure. The first account of the master being made up on this basis is correct; and the defendant is entitled to interest on the sum found due, till the time when the plaintiff shall redeem.