Pilok v. Bednarski
| Decision Date | 22 April 1918 |
| Parties | PILOK et al. v. BEDNARSKI. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Court, Franklin County; William Hamilton, Judge.
Bill in equity by Steven Pilok and others, holders of a third mortgage on real estate, to recover from John Bednarski the surplus held by him after the payment of a second mortgage bought by Bednarski, a creditor of the mortgagor, who had attached the property subsequently to plaintiffs' mortgage; plaintiffs having begun foreclosure proceedings but defendant having foreclosed under the second mortgage before plaintiffs' proceedings were completed. On report to the Supreme Judicial Court. Decree for plaintiffs.
Wm. A. Davenport and Chas. Fairhurst, both of Greenfield, for plaintiffs.
Parker D. Martin, of South Deerfield, for defendant.
The plaintiffs are entitled to a decree under the first prayer of the bill, the terms of which are to be settled in the trial court. The defendant, as the second mortgagee, having been authorized by the power to bid at the foreclosure sale, and his bid which was the highest having been accepted, the deposit made, and the memorandum or certificate of sale signed by the auctioneer, became the purchaser, and nothing remained by way of performance except to execute the deed to himself, and upon deducting the expenses, to apply the purchase price in liquidation of the mortgage debt, retaining the balance if any for the benefit of those who should receive it. Hall v. Bliss, 118 Mass. 554, 19 Am. Rep. 476. But it appears from the answer ‘that he does not intend to do so,’ and the report states that, at the hearing before the master, he testified that he did not intend to take title, and in so far as possible has disaffirmed the sale. The power has been fully executed. The mortgage has been regularly foreclosed. The plaintiffs however rank as the third mortgagee. By the terms of the advertisement, and of sale, the property was sold subject to an outstanding first mortgage and unpaid taxes. And the amount received having been more than sufficient to satisfy the second mortgage and costs of foreclosure, the surplus became payable to the plaintiffs who as the junior incumbrancers, succeeded to the rights of the mortgagor. Wiggin v. Heywood, 118 Mass. 514, 516;Mattel v. Conant, 156 Mass. 418, 31 N. E. 487;Bon v. Graves, 216 Mass. 440, 103 N. E. 1023.
But notwithstanding these well-settled principles, the defendant...
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Horizon Bank and Trust Co. v. Flaherty, No. CIV.A.03-11524-WGY.
...323 F.2d 992, 993-94 (1st Cir.1963) (citing, inter alia, Markey v. Langley, 92 U.S. 142, 23 L.Ed. 701 (1875), Pilok v. Bednarski, 230 Mass. 56, 119 N.E. 360 (1918), Andrews v. Fiske, 101 Mass. 422 (1869)); First Colonial Bank for Sav. v. Bergeron, 38 Mass.App.Ct. 136, 138, 646 N.E.2d 758 (1......
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Horizon Bank & Trust Company v. Flaherty, CIVIL ACTION No. 03-11524-WGY (D. Mass. 1/13/2004)
...Credit Corp. v. Bloomberg, 323 F.2d 992, 993-94 (1st Cir. 1963) (citing, inter alia, Markey v. Lanqley, 92 U.S. 142 (1875), Pilok v. Bednarski, 230 Mass. 56 (1918), Andrews v. Fiske, 101 Mass. 422 (1869)); First Colonial Bank for Sav. v. Bergeron, 38 Mass. App. Ct. 136, 138 (1995). Furtherm......
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New Haven Savings Bank v. Follins
...v. Sullivan, 182 Mass. 318, 319, 65 N.E. 389 (1902), Dennett v. Perkins, 214 Mass. 449, 451, 101 N.E. 994 (1913), Pilok v. Bednarski, 230 Mass. 56, 58, 119 N.E. 360 (1918)). The surplus proceeds are held as trust property for the benefit of any junior lienholder as the sole party in interes......
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US v. Rockland Trust Co.
...323 F.2d 992, 993-94 (1st Cir.1963) (citing, inter alia, Markey v. Langley, 92 U.S. 142, 23 L.Ed. 701 (1875); Pilok v. Bednarski, 230 Mass. 56, 119 N.E. 360 (1918); Andrews v. Fiske, 101 Mass. 422 (1869)). Given that the claim of a junior lienholder may thus prevail over a mortgagor's inter......