Mortgage, Of real estate: foreclosure, redemption. Equity Jurisdiction, For redemption from mortgage. Equity Pleading and Practice, Decree, Costs.
Where, in a suit in equity for the redemption of real estate from a second mortgage, it appeared that the defendant mortgagee had taken possession of the premises for the purpose of foreclosure and that the parties had entered into a stipulation that the defendant as mortgagee in possession should for a period of sixty days collect the rents and apply them (1) to payment of taxes and other ordinary carrying charges, (2) to the payment of interest on the first mortgage and on account of its principal so far as due, and (3) to the payment of interest on the second mortgage and on account of its principal so far as due, such stipulation neither expressly nor by fair implication prevented the defendant as mortgagee in possession from receiving reasonable compensation for his services in collecting the rents and making disbursements.
A mortgagee in possession ordinarily is entitled to fair pay for his services in managing the property.
In a suit of the character above described, the amount to be allowed to the defendant for his services while in possession of the real estate is not as a matter of law restricted to five per cent of the gross amount of money received by him; but the value of the services should be ascertained as a fact in the circumstances of the case.
It is proper, in a suit in equity of the character above described, to allow to the defendant fees paid to an attorney for services in connection with the foreclosure proceedings and interest upon advancements made by him for the payment of interest on a prior mortgage.
If costs are allowed in a final decree in a suit in equity, the decree should state the exact amount at which they are fixed.
RUGG, C.J.
This is a suit in equity to redeem real estate from a mortgage to the defendant. From a decree in their favor the plaintiffs appealed. The only questions argued by the plaintiffs relate to certain items in the accounting stated by the master, to whom the case was referred.
On February 25, 1920, the defendant took possession of the premises for the purpose of foreclosing his mortgage. After this suit was instituted, it was stipulated between the parties thereto that the defendant as mortgagee in possession should for a period of sixty days collect the rents and apply them (1) to payment of taxes and other ordinary carrying charges, (2) to the payment of interest on the first mortgage and on account of its principal so far as due, and (3) to the payment of interest on the second mortgage and on account of its principal so far as due. That stipulation does not either expressly or by fair implication prevent the defendant as mortgagee in possession from receiving reasonable compensation for his services in collecting the rents and making disbursements. A mortgagee in possession ordinarily is entitled to fair pay for his services in managing the property. There is nothing in the words or in the circumstances attending the filing of the stipulation to overcome the effect of this general rule.
The amount allowed by the master for services, although in excess of five per cent, was not erroneous in law. Barry v. Dow, 240 Mass. 419, and cases there collected.
The report of the master as to allowance to the defendant of attorney's fees in connection with the foreclosure and of interest on payments advanced by him was right.
The parties have filed an agreement to the effect that there was a mistake in the amount stated to be due to the defendant in the final decree, and that the amount should have been $32,921.65, with interest from October 27, 1921. The amount of the defendant's costs was not stated in the decree. That was wrong in form. The aggregate of costs should be specified in a decree in equity. Stevens v. Rockport Granite Co. 216 Mass. 486, 494. Rubenstein v. Lottow, 220 Mass. 156, 161, 162. The costs of this appeal are to be added. When thus corrected, the decree may be affirmed.
So ordered.