Draper v. Mann
| Decision Date | 09 April 1875 |
| Citation | 117 Mass. 439 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | John W. Draper v. Benjamin J. Mann & others |
Worcester. Bill in equity, filed August 10, 1874, against Benjamin J Mann, John C. Lloyd and C. B. Lloyd, formerly copartners doing business under the firm of Mann & Lloyd, and alleging the following facts:
On January 2, 1871, the firm, for value received, made and delivered to the plaintiff its promissory note for $ 4500 and promised to pay him the same in installments falling due every successive six months after date, with interest at the rate of eight per cent. a year, payable semiannually; and at the same time, to secure the payment of the note, made a mortgage to the plaintiff of certain real estate. By a power of sale contained in the mortgage, it was provided that if default should be made in the payment of said sums of money or any part thereof, or the interest thereon, then in case of any such default, the plaintiff was authorized and empowered to sell and dispose of said mortgaged premises, or any part thereof, and to convey the same to the purchaser, and out of the proceeds of such sale to retain and pay the principal and interest then unpaid on said sums, with all reasonable costs charges and expenses of the sale, and a reasonable compensation to the plaintiff for making such sale and conveyance, accounting for and paying to the defendants, and their heirs and assigns, the overplus, if any.
On December 23, 1872, no part of the note having been paid except the interest thereon to July 1, 1872, the plaintiff commenced an action against the defendants in this court, which is now pending, to recover the three first installments of the note then due and payable, and interest, and upon the writ in that action attached personal property of the defendants. On June 21, 1873, no part of the note having been paid except the interest as aforesaid, and another installment having become payable, the plaintiff, in pursuance of the power of sale contained in the mortgage, and after due proceeding had, sold the real estate, and realized from the sale, after paying all costs, charges and expenses, the sum of $ 4500, being less than the whole amount due on the note. The defendants are insolvent, and are possessed of no property for the payment of the plaintiff's debt, except the property attached as aforesaid. The defendants now insist that the balance derived from the sale of the mortgaged estate should be applied to the payment of the installments of said note which first became payable, and thereby deprive the plaintiff of the benefit of his attachment, and prevent the collection of his whole debt.
The bill prayed that the plaintiff might be permitted to take judgment in said suit for the difference between the whole amount of the note and the amount realized from the sale.
The defendants demurred to the bill; and the case was reserved by Gray C. J., upon the bill and demurrer for the consideration of the full court.
Bill dismissed.
F. A. Gaskill & G. M. Woodward, for the defendants.
T. L. Nelson & A. J. Bartholomew, for the plaintiff.
The note upon which this controversy has arisen is dated January 2, 1871, and is...
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