Moskol v. Jacobson

1 Super. Ct. (R.I.) 44

• Court: Superior Court of Rhode Island
• Decided: February 1, 1918
• Docket: Eq.No.2923
• Status: Published

Opinion

TANNER, P. J.

This was a bill brought to redeem a mortgage and for an accounting. It is heard upon the confirmation of the auditor’s report and as to the payment of costs.

The respondent, against whom the bill was brought to redeem the mortgage, asks' for costs. The complainant contests his right to costs upon the ground that the respondent claimed more than was awarded by the auditor. The general rule is that a.mortgagee against whom a bill for an accounting is brought is entitled to his costs.

For complainant: McGovern & Slattery. For respondent: Frank H. Wildes.

Sessions vs. Richmond, 1 R. I. 298.

2nd Jones on Mortgages, Sec. 1111.

It is not sufficient to take.a-case out of this general rule that a mortgagee claims more than his due. It is only where 'he sets up an unwarranted defence or one which wholly fails and thereby makes delay and expense. While it is true that the mortgagee claimed more than was due him, it is equally true that the complainant was still more in error as to his claim of what was due. The respondent did not seek to sell the estate but, on the contrary, seemed to be willing to adjust the account and sought to obtain a perusal of the complainant’s receipts, which was refused him. Six of the complainant’s receipts were rejected by the auditor as being palpable forgeries.

Under the circumstances of the case, we do not find that the respondent has done anything which would take the case out of the general rule that he is entitled to his costs. We think he is entitled to his costs, including the price of the testimony of the handwriting expert.