The Portland daily press., 1898-02-07
LAW COURT.
An Important Rescript Received
saturda

very important rescript was received
from the Law Court Saturday in the
case of Mary E. Bradley in equity, VS..
Sherburne r. Merrill ct ais. The opinion
is Judge Haskell's.
| This was bill in equity to redeem
land from an equitable mortgage. The
accounting must be had according to
the rules laid down in our former opinion
That opinion declares the relation of
mortgagor and MORTGAGE and allows
redemption according to the rules recog
nized in such cases. Permanent improve
ments not necessary for the preservation
of the property are to be disallowed. Those
necessary for the preservation of the prop
erty and repairs to make the premises
tenantable are to be allowed.
One Merrill, under whom defendant
claims, held an equitable mortgage. He
had agreed to reconvey upon the payment
to him of $161, ZOO with compound semi
annual interest at the rate of II per cent
per annum until paid, together with sums
paid for repairs, taxes and otherwise,
with interest on the same at the same
rate form the time of such payment, and
he agreed to account for the net rent and
income, "deduoting any commission that
1 may have to pay for collecting the
same"
| 1.-The court below allowed 5 per cent
commissions on the rent collected as COM
pensation for care of the property, and to
this allowance plaintiff has exception.
The amount allowed is $282. so. This ex-
ception must be oyerruled.
| 2-Defendant has exception to the re-
fusal to compound interest, as stipulated
in the above agreement. 1t has been uni
formly held in this state that compound
interest cannot be recovered where the
parties do not expressly promise to pay
it. We therefore sustain the exception to
refusal to compound the interest accru-
ing under it's express terms.
| 3-Merrill had an equitable mortgage.
There was q second mortgage upon the
property of the same character, when
Merrill conveyed to defendant. Merrill
paid the second mortgage. He did not
redeem, because it created no lien on the
property to which his mortgage attached.
1t was d lien only on the equity of re-
deeming Morrill's mortgage, so that, if it
be not extinguished altogether, it must be
considered as if assigned to Merrill
Plaintiffs exception to the ruling below
allowing the amount paid on account of
the Proctor mortgage to be treated as a
| new principal upon which interest should
| be cast, must be sustained.
| defendant built part of a double
house upon the mortgaged premises, and
the plaintiff has exceptions 80 the refusal
to charge defendant with rent of this
| house. The exceptions must be overruled.
5-The question of tender is not open
on these exceptions and need not be con-
sidered. That, too, was disposed of in the
original opinion. Moreover, it seems to
have been settled below as matter of fact
that there was no tender. The result Of
this opinion l. Q. that the second exception
noticed in this opinion, taken by defend |
ant, and the third exception, noticed in
this opinion, taken by plaintiff, be sus-
tanned and all other exceptions be over
ruled.
The alternative sum, $40, 346. &c. found
by the master to be due on April %, 1886, |
should be allowed less $23. AZ, the amount
of interest upon interest improperly al
lowed upon the Proctor mortgage, leaving |
the true sum as due on that date to be |
$40, 1928 a. From that date to the time of |
redemption an account should be taken
in accordance with the doctrine of this |
opinion, and unless the parties agree, the
causes should be senta to a master for the
purpose. Costs may be recovered if plain
tiff redeems.
Exceptions sustained. Decree modi.
fed. Masters report accepted for $40,
1923. "a as due April 20, 1886.