Gardner v. Corey

77 Mass. 30

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1858
• Status: Published

Opinion

Metcalf, J.

The condition of this mortgage is such, that we have found some difficulty in deciding upon its legal construction. After full consideration, we have come to the conclusion that the construction, for which the defendant’s counsel has ingeniously contended, cannot be supported. It is our opinion that the legal effect of this condition is, that the defendant should pay to the plaintiff two thousand dollars; that two hundred dollars should be paid on the 1st of April 1841, and the remaining eighteen hundred at a time or times not then agreed on or determined, with yearly interest on so much of that sum as should not be paid. No time being fixed by the parties for paying the eighteen hundred dollars, the law prescribes a reasonable time.. That time, as the parties agree, had elapsed before this action was brought. The plaintiff is therefore entitled to the conditional judgment provided by the Rev. Sts. c. 107, § 5, unless he is precluded by that part of the condition which provides for a surrender of the mortgaged premises to him by the defendant. As to that part of the condition, we incline to the opinion that it can legally be applied only to a voluntary surrender of the mortgaged premises by the defendant. However this may be, the condition clearly is, that such surrender, and its stipulated effects, were to be the consequences of some disappointment of the defendant, whereby he should be unable to make payment as he had engaged to do, and should for that cause be under the necessity of surrendering up the possession to the plaintiff. No such disappointment, inability or necessity appears in the case.

Conditional judgment to be entered.