Ireland v. Abbott

The opinion of the Court was by

Whitman C. J.

This is a bill in equity by a mortgagor against his mortgagee. The mortgage was made in March, 1824, to secure the payment of three several notes of hand, one of which has been paid. Those remaining unpaid were, one for ninety dollars, payable in January, 1826, and the other for one hundred and eighty dollars, payable in January, 1827, with interest annually. In March, 1829, these two notes remaining wholly unpaid, the defendant, in pursuance of an arrangement between him and the plaintiff, entered upon and took peaceable possession of the mortgaged premises. The object of the bill is to' obtain a redemption thereof. For this purpose the plaintiff avers, that he, in writing, duly demanded of the defendant an account, as provided by statute, exhibiting the amount due,- which he refused to render; and this allegation is not traversed by the defendant, and may therefore, be taken to be true.

The defence is, that the entry, in 1829, was for condition broken, and that more than three years having elapsed thereafter, before the institution of this suit, the right of redemption is barred ; and we see no reason to doubt, that such was the object of that entry. But by the statute of 1821, c. 39, § 1, it is provided, that the entry, to foreclose a mortgage shall be by process of law, consent in writing of the mortgagor, or by *157taking open and peaceable possession in the presence of two witnesses. The entry of the defendant does not appear to have been in conformity to either of these provisions. We are aware of the doubt, thrown out by Mr. C. J. Weston, in Boyd v. Shaw, 14 Maine, R. 58. It was but a doubt, however ; and not in reference to a matter essential in the decision of that case. The language of the statute seems to be plain and unambiguous; and we cannot hesitate in coming to a conclusion, that the defendant, in order to avoid the plaintiff’s right of redemption, must bring himself within one of the provisions named. Not having done so, however much we may regret it, under the peculiar circumstances of this case, there must be a decree, that the plaintiff shall redeem the premises on paying to the defendant what is due in equity and good conscience.

A master in chancery must be appointed, who will cast the current interest, on the amount unpaid, to the first of April, 1830; and ascertain the net amount of the rents and profits, deducting the cost of repairs, improvements on the premises, and the amount assessed for taxes thereon, which the defendant realized, or might, by the use of reasonable and ordinary diligence, have realized for (he year then next preceding, over and above a reasonable compensation for taking care of and managing the estate ; and set one off against the other ; and, according as the balance may be found to be, deduct it from, or add it to tbe principal; and so continue to do, from year to year, to the time of making his report; provided the debt shall not be thereby wholly cancelled ; and if it should be, and any balance shall remain of said net rents and profits, such balance will be ascertained and reported.