Bowen v. Atwood

10 R.I. 302

• Court: Supreme Court of Rhode Island
• Decided: October 6, 1872
• Status: Published

Opinion

Dubeee, J.

This is a bill to redeem a mortgage, the right to redeem which is not contested. The amount due on the mortgage has been ascertained by the master, and the only question now remaining for decision is a question of costs. Ordinarily the mortgagee is allowed his costs unless he contests the right to redeem; but the rule is not inflexible, and the plaintiff claims that, in this' case, it should not be applied.

The mortgage, though it was in form a mortgage to secure a note for $4,000, was in effect a mortgage to secure the defendant, who is a lumber dealer, for money advanced for the purchase of the mortgaged lot, and for labor and materials .furnished in the construction of a house thereon. The mortgage note fell due September 6, 1871, but the defendant did not furnish his bill of charges until September 25, 1871, though he had been requested to do so, for the first time, early in July, 1871, and repeatedly afterwards. The defendant, previous to. October 6, 1871, advertised tbe mortgaged premises for sale under a power in his deed, but was enjoined from selling tbe .same upon payment to him of $3,200.00 on his mortgage, being the amount which the plaintiff admitted to be due. There is evidence that the plaintiff offered to pay the defendant in full $3,300.00, though he made no actual tender of that amount before filing his bill; and that the defendant, previous to the rendition of bis account, bad claimed the full amount expressed in the mortgage note with interest, though his account rendered was for only $3,744.58 ; and also that tbe defendant through his son and clerk refused to consider a proposition for a settlement máde by tbe plaintiff’s counsel. The master reduced the account by about $200, the reduction being made principally on an item of interest, and on certain items of labor and materials, which were procured and paid for by the defendant, the same not being in his line of business, and charged to the mortgagor at an excessive advance upon cost. In these circumstances we do not find any sufficient reason for charging the defendant with costs. But we' do think tbe defendant made unreasonable haste to advertise the mortgaged premises, considering his own delay in furnishing bis accounts, and that he might have avoided much of the expense of this litigation, and perhaps have avoided the litigation altogether, by a more explicit method of accounting, or by a greater readiness to explain his charges, and to confer with the plaintiff or the mortgagor in regard to them, which, being an agent as well as a mortgagee, and especially in view of the character of the charges complained of, he should have manifested. We shall order that neither party recover costs. Decree accordingly.