Hood v. Adams
| Decision Date | 28 June 1878 |
| Citation | 124 Mass. 481 |
| Parties | Hannah M. Hood v. Davis F. Adams |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued November 8, 1877
Essex. Contract upon a promissory note for $ 800, dated December 20 1877, signed by the defendant, payable to the plaintiff or order, and secured by a mortgage of real estate. Answer payment in the manner following: The mortgage contained a power of sale in common form, authorizing the mortgagee, or any person in her behalf, to purchase at the sale, and provided that no other purchaser should be answerable for the purchase money. The defendant, immediately after giving the mortgage, sold his equity of redemption in the mortgaged premises, and has never since had any interest therein, and his grantee also sold the same before the sale hereinafter alleged. The plaintiff placed the mortgage and note in the hands of an auctioneer, and directed him to sell the premises under the power of sale in the mortgage and to bid thereon for her the amount due on her note and all expenses of the sale. The auctioneer advertised the same for sale for breach of the condition of the mortgage, and, for the purpose of foreclosing the mortgage, sold the premises by public auction (in compliance with the terms thereof and of the instructions of the plaintiff) to the plaintiff's agent, for the full amount due on the note and all the expenses of the sale which was the highest bid thereon. The advertisement and sale were in all respects pursuant to the power in the mortgage and lawful. Thereafter the plaintiff refused to sign the deeds prepared by the auctioneer, her agent, to convey the estate according to the terms of the sale, and fraudulently refused to apply the money, for which the same was sold to her, to the mortgage note, and claims the right to avoid the sale for thirty days thereafter.
At the trial in the Superior Court, before Gardner, J., the defendant offered to prove the allegations of his answer; and that the estate was struck off to James Silsbee in his own name, as agent for the plaintiff; that before the sale the plaintiff authorized Silsbee to purchase the estate in his own name, for the plaintiff, with a view to a conveyance to Silsbee and a simultaneous conveyance by him to the plaintiff; and that the plaintiff refused to execute the deeds and claimed to repudiate the sale three weeks afterwards.
The judge ruled that the allegations in the answer and the offer of proof, if proved, would not constitute payment of the note. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.
Exceptions sustained.
R. E. Harmon, for the defendant.
A. Jones, for the plaintiff.
As the court below ruled that the allegations of the answer and the facts offered in evidence at the trial would not, if proved, show a payment of the note, we must assume the allegations of the answer and the facts offered in evidence to be true. We have therefore this case:
The plaintiff holds the note of the defendant, secured by a mortgage on real estate, which contains a power of sale in common form, with a provision that the mortgagee, or any person in her behalf, may purchase at the sale, and that no other purchaser shall be answerable for the application of the purchase money. The defendant sold his interest in the real estate soon after giving the mortgage. There having been a breach of condition, the plaintiff, for the purpose of foreclosure, caused the estate to be sold by public auction, and it was bid in by the plaintiff's agent, who was the highest bidder, for a sum equal to the amount due on the note and the expenses of the sale. The proceedings were in all respects pursuant to the power in the mortgage and lawful, which we understand to include all the forms of a binding contract of sale and purchase. It also appears that the agent was duly authorized to purchase the estate for the plaintiff, with a view to a conveyance by the plaintiff to the agent, and a simultaneous deed by him to the plaintiff. The deeds were prepared by the auctioneer, and the plaintiff refused to execute them, and, as the answer alleges, fraudulently refused to apply the money, for which she had sold the property, to the payment of the note in her hands. This was the condition of things, when this action was brought upon the note.
Upon these facts, it appears that, at a sale properly conducted the property was in fact purchased by the mortgagee for a sum equal to the full amount of the debt secured by the mortgage. The question does not arise, what would be the rights of the defendant, if the sale had been to a third person, who without cause had refused to pay the money, and whom the plaintiff could have compelled to a specific...
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Davis v. Newburyport Five Cents Sav. Bank
...for all moneys received and expenses incurred by it in dealing with the mortgaged premises. G. L. (Ter. Ed.) c. 244, Section 20. Hood v. Adams, 124 Mass. 481. Dennett v. Perkins, 214 Mass. 449 . Weiner Slovin, 270 Mass. 392. The parties were entitled to have the account stated and the balan......
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Atkins v. Atkins
...be set aside, as the mortgagor whose debt was thereby satisfied is not a party, and the time for redemption has expired. Hood v. Adams, 124 Mass. 481, 483,26 Am. Rep. 687. Rev. Laws, c. 187, § 1. But as between the parties if the defendant who has not parted with the title, conveys to the p......
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Atkins v. Atkins
... ... whose debt was thereby satisfied is not a party, and the time ... for redemption has expired. Hood v. Adams, 124 Mass ... 481, 483, 26 Am. Rep. 687. Rev. Laws, c. 187, § 1. But as ... between the parties if the defendant who has not parted with ... ...
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Lindgren v. Lindgren
... ... is only a regulation outside of the contract by which title ... is passed. See G.S. 1894, § 7607; Hood v. Adams, 124 ... Mass. 481 ... Plaintiff's ... claim is res adjudicata. The second sale and the surrender ... and ... ...