The Somerset reporter., 1902-04-24
Somerset Cases.

The following cases have been re-
ceved from thu law court by Clerk of
Courts Seekins:
James Lumsden, in equity, VS. Ella M.
Whittemorr and ais. Rescript, Emery. j.
!. The purchaser of an equity Of re-
demptiOn cannot require the mortagee or
his assignee to assign the mortgage and
mortgage debt to him upon being ten
dered ,he amount thereof. fhe only
duty Of the MORTGAGE or his assignee
upon being rendered the amount OF the
debt Is to discharge or cancel the mort
gage.
2. That the assignee Of the mortgage
has agreed with the original mortgagor
10 purchase the mortgage and foreclose
II, and, If not redeemed, to afterward
convey the property TO him upon agreed
terms, does not entitle the purchaser
from the mortgager 10 have the mort
gage and debt assigned to him.
}. A bill in equity cannot be main
tanned to redeem from mortgage with
out a previous tender Of performance of
the conditions of the mortgage or proof
Of facts lawfully excusug the omission
Of uch tender. The bill itself must CON
tain allegations of such previous tender
or Of such facts as will legally excuse
the omission to SO tender.
4. A tender TO the mortgage or his
assignee of the amount due upon the
mortgage coupled, however, with the
demand and condition that the mortgage
shall be assigned to the person prefier-
ing the money, is not sufficient tender
OF performance. The tender must be uu-
conditional or at least accompanied only
| by demand for charge or cancellation
of the mortgage.
5. In this bill are no allegations OF
lawful tender of performance nor of any
facts lawfully securing the omission
Hence the bill cannot be maintained as
Il bill to redeem, but since the facts may
perhaps exist, this bill is dismissed with
out prejudice.
"Bll dismissed without prejudice. One
bill of costs for respondents"
Ticonic National Bank vs.. Mary c.
Turner, rescrlpt by Powers. j.
A Judgment should follow the writ and
declaration. When the suit is against an
executor, Judgment for the debt or dam
age should be entered up against the
goods and estate of the testator. II it i:
not so entered, it is the error of the clerk
and not of the court, and the court vii
order it to be corrected.
In AN action against an executor or adj
miuislrator, wherein judgment is rem
dered for debt and damages and fol
costs also, two executions should bt
awarded, one for the debt or damages
against the goods or estate of the de
ceased in the hands of the executor OF
administrator, and the other for the costs
against the goods, estate and body of the
executor or administrator.
Hhe amount of such execution for
costs is to he allowed to the executor OF
administrator in his administration &C
count, unless the Judge of probate de
cides that the suit was defended without
reasonable cause.
Il. S. c. 81, Sec. ,, is not intended tC
give "A creditor a cumulative remedy oil
which he may avail himself or not al
his election, without depriving him of
the right to have an execution for costs
against the goods and estates of the
deceased. The remedy for costs there
given is exclusive, and is intended for
the protection of the estates of deceased
| persons, to prevent them from being
frittered away in frivolous and ground
less suits by indiscreet or litigious eX
! ecutors or administrators.
Where, in an action against an execu
tor. one execution issues for both deb
and costs against the goods and estates
of The deceased in his hands, ard is salts
i fled by levying the same upon tn land:
of thu testator, such levy is void.
| Judgment for defendant.