Clark v. Fontain

Gardner, J. The opinion in this case, when it was last before us, contained the following language : “ The plaintiff can procure a release by the payment of the specified sum..... The plaintiff appears to have a right to redeem upon the payment of the agreed sum per foot, and the bill is to stand to allow him to move to amend by making it a bill to redeem.”The words “ right to redeem,” and “ bill to redeem,” mean the same as “right to obtain a release,” and “bill to obtain a 293 release.” Clark v. Fontain, 135 Mass. 464. The court expressed the opinion that the plaintiff was entitled to a release upon the payment of the agreed sum per foot, and the bill was ordered to stand to enable the plaintiff to amend his bill accordingly. Upon reconsideration, we think that the plaintiff is entitled to a release from the mortgage upon the payment of the stipulated price per foot. The defendant contends that she is entitled to interest on the sum of $600, which is the amount of fifty cents per foot on the number of feet in the plaintiff’s land, from the date of filing the original bill. By the terms of the agreement in the mortgage, the grantee agrees that she will release from time to time, whenever requested, any portion of the land, on being paid at the rate of fifty cents per foot, and all such sums shall be indorsed on the mortgage notes, and be so much paid on the mortgage debt. The agreement is to release whenever requested, on being paid the specified sum. The original bill was to restrain the foreclosure of the mortgage on the plaintiff’s land, and to compel the mortgagee to release the land from the mortgage. The amended bill offers to pay $600, the stipulated price, for a release of the plaintiff’s land from the mortgage. The plaintiff has offered to pay the amount for a release, and the defendant has refused to execute a release except upon the payment of a larger sum. No interest is specified in the agreement, and it is apparent that none was intended to be paid by the owners of the several lots. It is difficult to determine, if interest is to be paid, at what time it is to begin to run. The release was to be given whenever requested, on payment of the specified sum. The plaintiff has requested a release, and the defendant has refused to give one upon the payment of the amount offered. At the hearing before a single justice, it was found and determined, in substance, that there was no agreement to pay interest, and that therefore it did not begin to run until the time of the decree fixing the amount to be paid. A majority of the court are of opinion that there is no error in this determination. Decree affirmed.