Seaver v. Durant

The opinion of the court was delivered by Steele, J. This is an action of covenant and comes here upon a motion to dismiss, founded upon an agreed state of facts to determine whether George A. Low, may, by giving indemnity, prosecute this suit in the name of the plaintiffs, contrary to their will for his own benefit. Timothy Morse, the plaintiffs’ testator was the mortgagee in posession after condition broken, of certain real estate, of which Low owned the equity of redemption. Morse covenanted with the defendants to deed it to them if Low did not redeem it, and to let the defendants occupy it without rent until by bringing a bill to foreclose, it could be determined whether Low would redeem or not. The defendants on their part covenanted with Morse to pay him a certain price for the estate, if Low did not redeem, and to keep it in repair while-they should occupy without paying rent. Low did redeem and now claims that the defendants broke their covenant with Morse, the mortgagee, relating to repairs, by allowing the place to run to waste, before his redemption, and he asks through Morse’s name to. enforce for his own benefit the collection of damages for the breach of this covenant. After the law day had expired and the mortgagee had taken possession, Low had no legal interest in the land. The right to acquire a legal interest by redemption he could only enforce at equity. The incident to the right to redeem is the rigjit on redemption to call*the mortgagee to account for the rents, profits and management of the land while he was in possession. The incidental right cannot be "enforced in a court in which the principal right to which it is incident has no footing. Mr. Low, the mortgagor, cannot sue the mortgagee in a law court to enforce his claim for rents and profits. This was decided in Chapman v. Smith, 9 Vt., 153. His claim for waste [106] which occurred while the mortgagee was in possession stands upon the same ground. 2 Story Eq. Jur., § 914, et passim. 2 Perkins Dan. Ch. Pl. and Pr., p. 1238 et passim. Farrant v. Lovell, 3 Atk., 723. Dexter v. Arnold, 2 Sum. C. C. Rep., 124-30. Givens v. McCalmont, 4 Watts, 464. Gordon v. Hobart, 2 Story, 242-62. Being without remedy at law against the mortgagee he can stand in no better position as against the tenant of the mortgagee, unless he can avail himself of this contract relating to repairs between the tenant and the mortgagee. The law cannot aid him to this, for at law it is not Low but Morse who has an interest in the repairs of the estate and a right to damages for its mismanagement dating the time Morse was a mortgagee in possession. A law court cannot decree to the mortgagor the benefit of this contract. As there is no claim that the contract was assigned to Low by Morse, the case stands simply on the question of what the law will imply from the relation of the parties, and we think no implication arises upon which the action can be sustained. The judgment of the county court dismissing the suit is affirmed.