Fales v. Hemenway

Barrows, J. This case comes before us on exceptions to the acceptance of the report of the referee filed therein and the overruling of the defendants’ objections thereto. The suit was originally commenced by Joseph Tolman and’is a writ of entry upon a mortgage given to him by the respondents, conditioned to be void if they fulfilled their obligation of same date to maintain him during the term of his natural life, furnish him with certain comforts and privileges, and do certain other acts in said obligation specified. A hearing before a kinsman of both parties to whom the case was referred by rule of court, was had, and the questions now to be considered were raised upon the presentation of his report for acceptance during the life time of Tolman. . The objections relied on in argument here are that the referee had no authority to fix- the amount for which the conditional judgment should be rendered ; no power to include in such judgment any damages for the breach of the defendant’s obligation, except such as had accrued prior to the commencement of the action, and especially none for the future support of the mortgagee; and that he was allowed by the presiding judge to amend his report after it was filed, so as to make its purport more certain, by adding together and returning in one sum the damages which he had assessed for the support of the mortgagee up to the time of the filing of his report, and those which he had fixed upon and at first, returned separately as the prospective damages. I. When a suit upon a mortgage is referred by rule of court, without any special limitation' of the power of the referee, we think it very clear that it is as much the duty of the -referee to ascertain the amount for which the -conditional judgment shall be rendered, in case he finds the plaintiff- entitled to recover, as it is to determine in whose favor judgment ought to be rendered. It might as well be held that in an actioix' of assumpsit he has [377] authority only to say that the defendant did promise but not to assess the damages, as that he may find in a writ of entry on a mortgage that the defendants did disseize the plaintiff but has no power to fix the amount of the conditional judgment. II. Nor do we see any force in the objection to the referee’s making, with the permission of the presiding judge, such an amendment of his report after it has been returned to court as will make it more succinct and intelligible, without a formal order to recommit for that purpose. No change in the substance of the decision was sought or made. Subject to the defendant’s objection, the referee was allowed to make a specific amendment by adding together the two sums to which he had found the plaintiff entitled. All the substantial rights of the defendants were thus certainly as well preserved as they could possibly have been by a formal order to recommit, and a return from the referee in a new draft, which might have made it more difficult for the defendants to reach the remaining question, which is the only serious one presented by the exceptions. To all practical intents, moreover, the permission to amend was equivalent to a recommitment for that purpose. III. The referee included in the sum for which the conditional judgment was to be awarded, besides the expense actually incurred for the support of the mortgagee up to the time of filing his report, general prospective damages for the breach of the defendant’s obligation. Ought the judgment so to be made up in a suit upon a mortgage conditioned to be void if the mortgagor fulfils an obligation to support the mortgagee during his natural life ? When there is a breach of such an obligation and the mortgagee sues for possession of the mortgaged estate, shall his damages be assessed once for all, and the cónditional judgment rendered for the amount, or is he entitled only to a conditional judgment for the cost of his support up to the time of the commencement of the action or the trial thereof in court ? It was held in Sibley v. Rider, 54 Maine, 463, following the [378] doctrine of Philbrook v. Burgess, 52 Maine, 271, that the true measure of damages, .and the sum for which conditional judgment should be rendered in a suit upon such a mortgage, “is a present equivalent for full performance, and if the parties submit without exceptions to a less sum the judgment will nevertheless be conclusive.” Satisfaction of it will operate as a complete satisfaction of the obligation and mortgage, so that no action can subsequently be maintained upon either. Hard as this may seem in a case where a party ignorant of his legal rights had had judgment in such a suit entered up for past damages only, we think a little reflection will make it clear that the contrary doctrine and practice would so completely deprive the mortgagee of any effectual remedy as to work still greater injustice. There seems to have been at one time a doubt whether mortgages of this description were subject to redemption after breach of the condition ; but this court held in Bryant v. Erskine, 55 Maine, 157, that they are so. And this is doubtless right; but it is easy to see that the mortgagee who, as is usual in such cases, has conveyed his whole estate, relying upon prompt and punctual performance by the mortgagor for his daily bread, would be in a sorry plight if he were forced to depend for his means of subsistence upon such credit as the right to maintain a succession of small suits for the recovery of money actually advanced, would give him. After paying the expenses of litigation, little would remain for the support of the obligee. On the other hand, the party who receives a conveyance of property upon the strength of his agreement to furnish a life maintenance to the grantor, if required, when he fails to perform his eo’ntract, either to restore the possession of what he has received or to furnish the means of making his undertaking good, has no cause of complaint. He simply abides the natural and necessary consequences of his own delinquency. A review of the question only confirms us in the conviction that an adherence to the doctrine of Sibley v. Rider, and Phil379 brook v. Burgess, ubi supra, will best subserve both law and justice. It was the duty of the referee standing as he did in the place of both judge and jury, to determine not only whether the continuing agreement of the defendants had been broken, but to ascertain what sum would be, in equity and good conscience, a present equivalent for full performance; and for such sum it would follow that a conditional judgment should be entered. Exceptions overruled. Walton, Daneorth and Peters, JJ., concurred. Yirgin, J., concurred in the result.