Stewart v. Clark

52 Mass. 384

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1846
• Status: Published

Opinion

Shaw, C. J.

The demandant is entitled to a special conditional judgment, so framed as to secure his rights as mortgagee, according to the principles settled by the report of the auditor. By the Rev. Sts. c. 107, §§ 5, 6, the court are not confined to the entry of a conditional judgment in those cases only in which the payment of money is the condition. By <§> 6, if the doing of a collateral thing, other than the payment of money, is the condition, “ the court shall vary the terms of the judgment, as the case may require.” And by <§> 29, it is provided, that “ in all suits, brought under the provisions of this chapter” (c. 107,) “ either for the redemption of mortgaged premises, or for the purpose of foreclosing the right of redemption, the court shall have power, as to all things not provided for ” in said chapter, “ to make such order, judgment, or decree, as justice and equity may require, and to issue such process as may be necessary or proper, according to the course of proceedings in chancery.” This, in terms, extends not only to a bill in equity to redeem, but to the special action, in the form of a common law action, by writ of entry, given to a mortgagee, and. assignee of a mortgage, to foreclose. And these special provisions as to the judgment give to this special writ of entry nearly all the attributes of a suit in equity. The most common case of a mortgage is that when it is given to secure the payment of a sum of money; and then a simple conditional judgment, in the usual form, is all that is necessary. But when, as in this case, a mortgage is given to secure the payment of money, and the performance of various duties from time to time, extending perhaps to the mortgagee’s whole life, the provision in question will authorize the court to enter any decree, from time to time, toties quoties, which might be made in an equity suit, in order to accomplish the purposes of the mortgage, and to issue any process to carry such a decree into effect.

The following decree was made by the court:

“ It is now ordered and decreed, that the conditional juctg ment provided by statute be entered up in manner following: That unless the said defendant pay to the said plaintiff, with interest and costs, within two months, two hundred and twenty one dollars and forty two cents, and also pay to Joseph Barber, or any other person being the lawful indorsee and holder of the three notes hereinafter mentioned, the sum of three hundred and sixteen dollars, and interest, being the amount of three promissory notes, as follows; ” (particularly describing the three notes mentioned in the auditor’s report, payable to Cornelius Putnam, or order;) “and file, in the office of the clerk of our court for the county of Franklin, evidence of the cancelling of said notes, then our writ of execution to issue, &c. according to law, &c. And it is further ordered and decreed, that in case the aforesaid condition be complied with, and the sums therein mentioned paid, within two months from the time of rendering this judgment, the said mortgage, so far as it stands for security for any debt to be paid, or duty to be done, by the said Lewis Clark, up to the time of the rendition of this judgment, shall be wholly discharged ; but so far as it stands as a security for any debt to be paid, or duty to be done, after the rendition of this judgment, the same shall remain in full force.”