Dennett v. Perkins
| Decision Date | 22 May 1913 |
| Citation | 214 Mass. 449,101 N.E. 994 |
| Parties | DENNETT v. PERKINS et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Lemuel W. Peters and Frank N. Nay, both of Boston, for plaintiff.
J Winthrop Pickering, of Boston, for defendants.
DE COURCY, J.
The plaintiff was the owner of certain real estate subject to two mortgages, one of $15,000 and one of $1,500, given by his grantor to Charles B. Perkins, deceased. There being a breach in the condition of the larger mortgage, the defendants, as trustees under the will of said Perkins, proceeded to foreclose the mortgage, acting under the power of sale therein. On the day advertised, February 24, 1910, the property was sold to the plaintiff's wife, as the highest bidder, and she made a deposit of three hundred dollars and signed an agreement providing that she should forfeit this sum to the use of the seller if she should fail to comply with the residue of the terms.
Mrs Dennett made default in the payment of the balance, and the defendants again advertised the property to be sold under the power of sale. On April 4, 1910, the date of the sale, the Farmhood Corporation was the highest bidder, and made a deposit of $500 and signed an agreement like that of Mrs Dennett above referred to. The Farmhood Corporation failed to pay the balance and that sale never was completed.
A third foreclosure sale was made by the defendants on May 11, 1910; the plaintiff himself was the highest bidder, made a deposit of $500, and signed a like agreement to forfeit this sum to the use of the seller if he should fail to comply with the terms of the sale.
The plaintiff failed to complete the purchase and the defendants made a fourth foreclosure sale on August 11, 1910. Again the plaintiff was the highest bidder, making a deposit of $600 and signing a like agreement. He failed to pay the balance.
On September 14, 1910, the defendants duly made a fifth foreclosure sale. The plaintiff was the highest bidder, made a deposit of $600 and signed an agreement similar to the earlier ones. As he failed further to comply with the terms of the sale, a sixth foreclosure sale was held on October 19, 1910. At that time the plaintiff again was the highest bidder, made a deposit of $600, and signed the usual agreement; and again he failed to complete the purchase.
Finally a seventh foreclosure sale was held on November 23, 1910, at which the property was bid in by the defendants for $18,000 and a mortgagee's deed in the usual form was made to them as trustees. The plaintiff contended that the defendants should credit him with the further sum of $3,100 received from the six deposits, and that after deducting therefrom the amounts due under the two mortgages and expenses and disbursements at each of the sales, they should pay the balance to him.
This action for money had and received was brought to recover that balance, and the judge of the superior court found for the plaintiff. The sole question involved in the exceptions is whether it is the duty of the defendants to account to the plaintiff for the $3,100 received from the deposits on the...
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