Barry v. Dow

134 N.E. 367, 240 Mass. 419, 1922 Mass. LEXIS 804

• Court: Massachusetts Supreme Judicial Court
• Decided: February 28, 1922
• Status: Published

Opinion

By the Court.

This suit in equity as it now stands is an action for accounting in the nature of a bill to redeem against a mortgagee in possession of real estate. The single contention made now by the plaintiffs is that there are no facts which warrant the allowance of any sum larger than the five per cent on the rents collected by the mortgagee while in possession. The rule of law governing this subject was stated in Adams v. Brown, 7 Cush. 220, at page 222, in these words: “In many cases, a commission of five per cent on the rents received would be wholly inadequate, while in other cases, it might be a very liberal compensation. Each case in this respect must depend on its own peculiar circumstances. Cazenove v. Cutler, 4 Met. 246. As the master has found the services of the defendant in this case to have been worth more than he felt at liberty to allow, this exceptian to the report is sustained, and the case is to be recommitted to the master, with directions to allow the defendant such further sum as he may think just and reasonable.” That rule has been constantly followed. The usual allowance is indeed five per cent. That will be adopted unless the master finds that the services were actually worth more but that is not an inflexible percentage. Gerrish v. Black, 104 Mass. 400, 403. Montague v. Boston & Albany Railroad, 124 Mass. 242, 247. Brown v. South Boston Savings Bank, 148 Mass. 300. See Clark v. Story, 208 Mass. 36, 40. No reason appears in the case at bar for disturbing the master’s finding for a larger amount.

Decree affirmed with costs.