Mattel v. Conant
| Decision Date | 17 May 1892 |
| Citation | 31 N.E. 487,156 Mass. 418 |
| Parties | MATTEL et al. v. CONANT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J.S. Dean, for plaintiffs.
J.W Keith, for defendant.
The defendant is sued for money remaining in his hands from a sale of lands made by him under a power contained in a mortgage. He has satisfied his mortgage debt, and admits that he holds money so acquired, and not belonging to himself; but contends that the plaintiffs cannot recover it because he has made no contract with them for its payment. The plaintiffs did not give the mortgage, and the mortgagor died before breach of condition, and the sale was made after his death. The plaintiffs are, no doubt, strangers to the contract which the defendant, by accepting the mortgage, made with the mortgagor to pay the surplus of any sale to him or his assigns. But they do not sue upon that contract. When one sells the property of another by virtue of a power, the law implies an obligation that he shall account for and pay over the proceeds of the sale. The mortgagee obtains his power to sell from the mortgagor; but if, before the sale, the mortgagor has parted with his title to another person, who at the time of the sale stands in the relation of owner, the law independently of any contract in the power, makes it the duty of the seller to pay the surplus to such owner. This obligation is consistent with, but does not spring from, the contract made with the mortgagor by accepting the power. It is immaterial that the owner is a stranger to the contract between the original mortgagor and the holder of the power, and it is of no importance whether that contract is a simple contract or a contract under seal. The defendant has sold by lawful authority the property of another, and it is his duty to account for and pay over the proceeds of the sale, so far as they do not belong to himself. Wiggin v. Heywood, 118 Mass. 514; Gardner v. Barnes, 106 Mass. 505; Cook v. Basley, 123 Mass. 396; Converse v. Bank, 152 Mass. 407, 25 N.E. 733. This action is suitable to enforce such a liability. If, therefore, the plaintiffs at the time of the sale were owners of the property sold, they can maintain the action to the extent of their ownership, whether conditional or absolute, and the fact that the defendant has contracted with the original mortgagor for the disposition of the proceeds of sale is not a defense. The defendant's mortgage was made on July 19, 1881, and immediately thereafter the mortgagor conveyed the land to the plaintiffs and their heirs, subject to the defendant's mortgage. This deed was upon condition that it should be void if the grantor should during his lifetime pay to each of the plaintiffs or their respective heirs the sum of $500; and the grantor died between April 24 and May 22, 1882, without making any of the payments. Whether the deed to the plaintiffs was given to secure loans, and so is to be considered as a mortgage, or is to be construed as conveying a determinable fee, which, by the grantor's death without making the payments stated in the condition, has become absolute, is immaterial to the decision of the present case. Under the deed the plaintiffs were at the time of the defendant's sale the owners of the land, either absolutely or in mortgage; and if in mortgage, the amount of their claim apparently exceeded the amount for which the defendant is liable in this action. The plaintiffs thus show a right to call upon the defendant to account for the proceeds of his sale, and to recover of him all the surplus in fact remaining in his hands. The defendant asked a ruling that the validity and legal effect of the deed to the plaintiffs cannot be determined in this action, but only in an action between the plaintiffs and the persons entitled to the estate of the grantor under his will; and he now argues that he cannot be heard to dispute the validity of the deed, and may hereafter be held to answer to an action by an administrator or executor who would not be bound by the decision in this cause. The ruling was properly refused. The conveyance of the estate by the mortgagor to the plaintiffs was alleged in their declaration, and denied in the defendant's answer, which also submits to the court the legal construction of the deed. As the plaintiffs founded their action upon rights claimed under the deed, it was open to the defendant to contest either its validity or its construction, as well as the amount due upon it, if a mortgage; and the fact that in some possible controversy between himself and other parties such parties may make claims with reference to it, as to which the decision in this case will have no effect, is immaterial.
It appears that the mortgagor left an instrument purporting to be his last will and testament, by which nothing was bequeathed to either of the plaintiffs, which instrument has never been offered for probate, and that no administration has been granted on his estate. The mortgage sale was on November 7, 1882. After the sale the defendant ...
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