Sullivan v. Neary
| Decision Date | 22 June 1904 |
| Citation | 71 N.E. 193,186 Mass. 158 |
| Parties | SULLIVAN v. NEARY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James R. Murphy and John J. Moore, for plaintiff.
Joseph G. Holt, for defendant.
The principal facts are these: The defendant, owning land mortgaged it for $6,000; the mortgage containing a power of sale. Subsequently he borrowed of the plaintiff $1,050 giving him on October 1, 1901, the note for that sum set out in the declaration, payable $50 in three months, and the balance in six months, from October 1, 1901, namely, on April 1, 1902. To secure this note the defendant gave the plaintiff a second mortgage on the land. Breach was made of the conditions of the first mortgage, and a foreclosure sale under the power contained in that mortgage was made on March 8, 1902, to the plaintiff, for the sum of $7,000, which the plaintiff paid to the holder of the first mortgage, who retained from that sum $6,396.42 for principal, interest, and expenses of the foreclosure sale, and the further sum of $126.91 for overdue taxes, and turned over the balance, of $476.67, to the plaintiff, as holder of the second mortgage who applied that sum in part payment of the note of October 1, 1901. In order to raise the $7,000, the plaintiff was obliged to apply for a loan upon the land to the original mortgagee, who required a release from the defendant. The mortgagee's sale having taken place on March 8th, on March 17th the defendant executed a release of the land to the plaintiff; and on March 18th the land was deeded by the original mortgagee, in pursuance of the sale of March 8th, to the plaintiff, and mortgaged back by the plaintiff to the original mortgagee. When the note of October 1, 1902, became due, the defendant refused to pay it; and this action is to recover the balance due upon it after applying upon it a first payment of $5,000, and the $476.67 of surplus coming from the mortgage sale.
The case was heard by the court without a jury, and is here upon the defendant's exceptions. At the trial the facts above recited appeared in evidence, or were admitted, with the further facts that the plaintiff never intended to waive the payment of the balance of the note of October 1, 1901; that the original mortgage contained a covenant on the part of the defendant that upon request he should execute and deliver to the purchaser at any foreclosure sale a deed or deeds of release confirming the sale; that the release given was asked for by the original mortgagee; that the plaintiff never did or said anything in relation to the payment of the balance of the note, except to say to the defendant that the...
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