Mills v. Day

Hammond, J. This case is before us upon appeals by the defendant from the decree confirming the master’s report and from the final decree in favor of the plaintiff. 1. The first objection is that upon the facts found by the master the defendant is not chargeable with the rental value of [532] the mortgaged premises, but only with the rent and profits actually received by him. The report states that the “ defendant was fully examined as to the extent of his effort to rent the farm,” and that upon all the evidence the master found that “ the defendant did not exercise due diligence therein but was negligent and careless and with almost no recompense permitted the occupancy of the farm by parties of no financial responsibility for long periods and did not in good faith act as a prudent man in handling the same.” The master further found that the defendant’s account “ was not kept in the regular course of business but was apparently made up from memory and such records as the defendant could find at the time of the trial.” It is too clear for discussion that upon such findings the defendant may be held to account for the fair rental value of the premises. Miller v. Lincoln, 6 Gray, 556. Long v. Richards, 170 Mass. 120, 125, and cases cited. 2. The second objection (as stated in the brief of the defendant) is that the defendant “ is not chargeable either with the rental value or with rents and profits actually received, except from the date of his entry to foreclose to the date of the filing of the bill and for a time thereafter reasonably sufficient for the prosecution of the bill to a final decree ”; and it is contended that the time covered by the final decree greatly exceeds such reasonable time. It is to be noted that this is not an objection that the bill should be dismissed for want of prosecution. Such a motion had been made by the defendant previous to the hearing before the master and had been overruled by the court; and the defendant did not appeal. The bill was filed June 27, 1896, the last day of the three years next after the date of the entry to foreclose. It was not referred to the master until eleven months after the return day. The record does not show when the rule to the master was taken out, but the hearings before him did not begin until June 19, 1907, nearly ten years after his appointment. The defendant did not appear either pro se, or by counsel, until June 21, 1907, when he filed his answer. The bill never was taken for confessed, nor does it appear that the plaintiff ever made a motion to that end. An unusual length of time is thus shown to have elapsed between the time the bill was filed and the master ap [533] pointed, and the time the hearings began before the master. It is urged that this delay is due to the plaintiff’s inaction and that the defendant ought not to suffer on that account. This is not a case like Bancroft v. Sawin, 143 Mass. 144, cited by the defendant, where the plaintiff after filing his bill took out no subpoena and never notified the defendant of the suit and the defendant had no knowledge of it for more than two years. In the present case the defendant is not without fault. Here upon the filing of the bill the subpoena was promptly taken out, and the defendant does not contend that it was not promptly served. He did not file his answer until June, 1907, about eleven years after the subpoena was issued. He had full knowledge of the pendency of the suit, and therefore knew that he was still a mortgagee in possession, with all the rights and subject to all the duties arising out of that situation, and that he would be held answerable to the owner in fee for the proper management of the trust he had assumed. With this knowledge he kept possession of the property under his title as mortgagee long after the mortgage debt had been paid, and did not act in good faith in the management. The interlocutory decree overruling the motion of the defendant, made in 1908, that the bill should be dismissed because of delay in filing the master’s report within the time set by the order of the court in December, 1906, distinctly stated that the delay in the filing of the report “ was due in large measure to the defendant.” While it is true, as stated by the defendant, that this is no finding as to the delay before 1906, it is also true that the master has made no finding as to who is responsible for the delay before that time; and upon this record we cannot assume in favor of the defendant that there is any injustice to him in holding him answerable in this suit for the proper management of his trust so long as he, claiming to be a mortgagee in possession, held the property. There is no error in the master’s report in this respect. 3. The final decree properly allowed interest from the filing of the master’s report. Merriam v. Goss, 139 Mass. 77, 84. 4. The defendant’s contention that under E. L. c. 187, § 24, he is entitled to costs is correct. No tender was made before the filing of the bill, and at that time the condition of the mortgage had not been fully performed. There was still something [534] due upon it. It is no answer to this to say that at the time of the final decree there was nothing due. The thing to be tendered is the sum due when the tender should be made, that is, before the filing of the bill. There is no contention here by the plaintiff that the defendant refused to render any account or otherwise by his default prevented a tender. Costs therefore should be allowed the defendant. We have considered all the objections raised by the defendant. The result is that the decree confirming the master’s report, and the final decree with the modification as to costs, should be affirmed. So ordered.