Green v. Lamb

The defendant claims that he should have been allowed commissions. Now it must be noticed that this is not the case of a trustee accounting with a cestui que trust. The defendant was, on the contrary, simply a mortgagee in possession. The conveyance to him, absolute in form, was in fact to secure a debt and liability.

In Moore v. Cable (1 Johns. Ch., 385), some of the early cases are cited on this point, holding that such a mortgagee is not entitled to commissions. Among others is Bonithon v. Hockmore (1 Vern., 316). But it should be noticed that in that early case the mortgagee in possession is classed with a trustee; and it is said that neither was entitled to commissions. Plainly the law is changed as to a trustee.

In Walsh v. Rutgers F. Ins. Co. (13 Abb., 33), on an accounting between owner and mortgagee in possession, nothing is said about commissions; and they do not seem to have been allowed. In fact, this relationship does not often arise in this State. On the other hand, in Massachusetts, where a mortgagee enters after default for the purpose of foreclosure, the question as to commissions has arisen more frequently. In an action to redeem it has been held, that the mortgagee in possession, having entered for breach of condition, is entitled to ordinary commissions, and even, in special cases, to more. (Casenave v. Cutler, 4 Metc., 246; Adams v. Brown, 7 Cush., 220.)

*90On the whole, we are of opinion that no fixed, rule should be laid down, which would apply to every case where there is the legal relation exising between mortgagee in possession and owner. The circumstances which cause the relation may differ widely, and may make different rules as to commissions just and proper. Here the defendant, who was in fact mortgagee, entered by virtue of the conveyance and with the evident consent of the grantor. His receipt of the rents and profits was partly at least to pay the debt owing to him. He did not enter after condition forfeited, or for the purpose of foreclosure, as in the Massachusetts cases.

In the present case the referee has thought that the defendant should not have commissions ; and we think that there is nothing so unreasonable in his decision on that point that we should change it. In many matters which are discretionary, the opinion of the referee who tries a case is more likely to be correct than that of an appellate court, who only read a printed case.

So, too, on the question of costs. We suppose that the costs are of course, from the nature of the complaint, But without deciding that point, the referee, if costs were discretionary, could judge from the witnesses before him which of the parties had acted in good faith, and on which the burden of costs should be thrown.

. We see no reason to disturb the judgment and it must be affirmed, with costs.

Judgment affirmed, with costs.