Cree v. Lord

The opinion of the court was delivered by Redeield, Ch. J. This is a bill to redeem. The plaintiff made a tender of what he called the sum due upon the mortgage. He now claims that something should be deducted from that sum, on account of rents and profits received by the defendant. But there is no allegation in the bill that the defendant had received any such rents or profits, but only that he threatened to do so, and' [502] had actually turned his cattle upon the land. But this is not treated as an act of receipt of profits, for no prayer for any account of such rents is contained in the bill. And there is nothing in the case to show that the orator ever claimed to have any such account taken in the Court of Chancery. And the plaintiff obtained an injunction upon his bill, restraining him from carrying his threats of taking the rents and profits into execution. The bill evidently puts the case solely upon the amount due upon the mortgage having been tendered. And upon that ground the case seems to have been heard and decided. And this is all that is fairly involved in the case, as it seems to us. And here it would seem that the tender was too small, if the plaintiff is entitled to all his costs, against Beckwith. We think there can be no doubt of this. The plaintiff was justified in pursuing his debtor, and it was the duty of this plaintiff to have paid the debt before costs were made; and if he did not, he should pay the costs which accrued in consequence of his neglect. And we think the costs of the writ of possession, and executing it, should be reckoned, as much as the other costs. The tender then being insufficient, the defendant, upon general principles, is entitled to costs, and the decree of the chancellor is affirmed, and the case is remanded to the Court of Chancery, to be there carried into effect. The chancellor will enlarge the time of redemption, in his discretion, upon the orator paying the interest and costs, which have accrued since the appeal.