Haskins v. Hawkes

Chapman, C. J. When William Hawkes, the mortgagee, died, in November 1870, there had been no entry or other proceeding for foreclosure; and the plaintiff’s right to redeem re.nained unaffected. The mortgage was personal assets, and would go to an administrator. Gen. Sts. c. 96, § 9. The children and heirs of Hawkes, who are made defendants in the bill, entered the mortgaged premises to foreclose, and took the rents and profits. But they were mistaken in supposing they had such a title as would enable them to foreclose. Smith v. Dyer, 16 Mass. 18. Fay v. Cheney, 14 Pick. 404. Palmer v. Stevens, 11 Cush. 147. By thus intermeddling with the property, they became executors in their own wrong in respect to what they have received, and the plaintiff has a right to treat them as such. Gen. Sts. c. 94, §§ 14, 15. Williams on Executors (6th ed.) 247 & 382 seq. As they entered under the mortgage, claiming under it, for the purpose of foreclosing it, and allege in their answer that they have foreclosed, they are not to be permitted to shield themselves against accountability by saying that they have occupied as mere strangers and disseisors. By the authorities cited above, the administrator lately appointed may treat them as disseisors, in order that he may recover of them the rents and profits which they have wrongfully received. But the j aintiff is entitled to redeem, and to have the rents and profits applied on his note. The administrator is the person to whom the balance due is to be paid by the plaintiff, and is properly made a defendant; but the executors in their own wrong should account for the rents and profits, in order that they may be applied on the note. They, as well as the administrator and the plaintiff, are interested in the taking of the account, and when an account is to be taken all the parties interested in taking it should be made parties to the bill. In this suit, full relief can be given by bringing in the executors in their own wrong, and compelling them to account to the administrator, so that the amount due from them may be applied upon the note which the administrator will collect for the estate. Since this is the case, equity will not allow them to turn the plaintiff over to a double litigation. 1 Story Eq. (10th ed.) § 64 k. Decree for the plaintiff for redemption against all the defendants ; the rents and profits to he accounted for to the administrator., and applied on the debt.