Gerrish v. Black

113 Mass. 486

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1873
• Status: Published

Opinion

Wells, J.

By Gen. Sts. c. 140, § 21, if a suit for redemption cf a mortgage “ is brought without a previous tender, and it appears that anything is due on the mortgage, the plaintiff shall pay the costs of suit, unless it appears that the defendant has unreasonably refused or neglected, when requested, to render a just and true account:” or “that he has otherwise, by his default, prevented the plaintiff from performing or tendering performance of the condition before the commencement of the suit.”

The report states the fact to have been found, “ that the plaintiff had made no demand on the defendant for an account before bringing his bill to redeem.” From this we infer that there was no tender, and no excuse for not making a tender. The defendant is entitled to costs, then, unless this explicit provision of the statute is controlled by some other necessarily inconsistent provision of law. The plaintiff relies on the statute relating to usury, upon which the controversy in this case has mainly turned. Gen. Sts. c. 53, § 4.

So far as that is a statute regulating costs, it only applies to actions brought by the creditor to enforce his contract. And although it may control, or at least guide the discretion of the court, upon a bill by the debtor to redeem, in all cases where the costs are within its discretion ; Smith v. Robinson, 10 Allen, 130; it cannot control the express and special provision of the statute regulating this proceeding. In Minot v. Sawyer, 8 Allen, 78, it was held that a suit by the creditor to foreclose a mortgage was an action on the contract, such as to entitle the defendant to costs, he having prevailed upon a plea of usury, in the hearing to determine the amount of the conditional judgment. But costs, in a writ of entry to foreclose a mortgage, are governed by the general rule which gives costs to the prevailing party, “ except in those cases in which a different provision is made by law.” Gen. Sts. c. 156, § 1. The provisions of Gen. Sts. c. 140, § 5, must have been regarded as intended merely to direct the form of entering judgment, including costs, when costs are recoverable, and not to give the right of recovery.

The plaintiff contends, however, upon the Gen. Sts. c. 53, § 4, that it is not a mere provision regulating costs, but that the costs are a part of the penalty imposed by the statute ; and that as such he has the same right to exact it, whatever the form of proceeding, as he has to exact the penalty.

There is much force in this view of the case. But we are drawn to the opposite conclusion, mainly from the difference made in the statute itself, in the manner of disposing of the two. The threefold penalty is deducted from the debt, and the plaintiff has judgment for the balance; while the defendant has a separate judgment for his costs. Brigham v. Marean, 7 Pick. 40. Mansur v. Wilkins, 1 Met. 488. The defendant “shall recover his full costs,” and the plaintiff “ shall forfeit threefold ” the unlawful interest.

This difference, both in the form of imposition and in the manner of recovery, indicates that the costs are given only as an incident of the suit, to the party prevailing on the special issue. Regarding them in that character, we think the statute under which this suit is brought, by its explicit provisions as to costs, must govern this case.

It has indeed been decided in this suit at a former stage, 99 Mass. 315, and 104 Mass. 400, and in Hart v. Goldsmith, 1 Allen, 145, that the defendant, in a bill in equity to redeem land from a mortgage, by insisting upon his usurious contract becomes an actor in the suit, so far as to subject himself to the penalty of the statute, and to have threefold the amount of usurious interest deducted from his debt. To that extent the rule is necessary in order that the amount of the debt, for which the mortgage may be held, shall be the same in whichever mode it is to be ascertained ; and it does not conflict with any other provision of law. To extend it further to the recovery of costs would bring it into direct conflict with the express provisions of the statute regulating costs upon bills to redeem. The statute of usury does not require this, and by its very terms, as before suggested, enables the two statutes to be construed together in harmony, each hat ing its full effect. In each case the costs will be imposed in accordance with the statute which regulates the mode of proceeding. Costs for the defendant..