Reports of Cases Argued and Determined in the Supreme Court of the State of Montana Volume 39 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1910 Excerpt: ...is a rule of well-nigh universal recognition that, "on redemption from a mortgage under which the mortgagee has acquired and retained possession, he must account and give credit for the rents and profits of the premises during the period of his occupation, and it is immaterial whether he holds under a formal mortgage or under a deed absolute in form but intended as a security." (27 Cyc. 1878.) But the extent to which this rule is to be carried is involved in some obscurity. However, after a somewhat extended review of the authorities, we think the doctrine most harmonious with reason and equity is that: "If the mortgagee personally retains possession of the mortgaged premises, he will be chargeable on his accounting with the reasonable value of the use and occupation thereof, amounting to the fair rental value of the premises for the period." (27 Cyc. 1841.)' This same rule applies if a mortgagee, though himself not actually in possession, does not keep an accurate account of the rents received and is guilty of such misconduct as to make a resort to this rule equitable, or if such mortgagee has not exercised reasonable care in selecting an agent to look after the property, or if, having exercised due care in selecting an agent, the agent does not exercise reasonable care to keep the property rented. But, on the other hand, if the mortgagee by reason of his absence or other excuse is not personally in possession of the property, but depends upon the interposition of an agent, and if in selecting such agent the mortgagee exercises due care, and if then such agent further exercising reasonable care to keep the property rented at a fair rental, then the mortgagee will be chargeable with rents actually received, and not with the val...