Warneke v. Wyszatycki
| Decision Date | 26 November 1929 |
| Citation | 269 Mass. 179,168 N.E. 740 |
| Parties | WARNEKE v. WYSZATYCKI. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Court, Hampden County; F. B. Greenhalge, Judge.
Action by Louis Warneke against Lucia Wyszatycki, with trustee process. On report from the superior court. Judgment for defendant.
J. F. Egan and C. M. Jacobs, both of Springfield, for plaintiff.
J. A. Frankowski, of Holyoke, for defendant.
This is an action of contract to recover damages for the alleged breach of an agreement, contained in a deed, and comes before us upon a report of a judge of the superior court.
On November 18, 1925, the plaintiff by warranty deed conveyed to the defendant certain parcels of land, subjectto a first mortgage of $5,500 and to a second mortgage of $3,300. It was recited in the deed that the grantee assumed and agreed to pay these mortgages as part consideration for the conveyance. It is stated in the report of the judge that the rule issued to the auditor, to whom the case was referred, provided that his findings of fact were to be final.
The trial judge, upon the facts found by the auditor and the inferences drawn therefrom, ruled that the plaintiff was not entitled to recover. It appears from the report that interest due on the second mortgage, amounting to $67.65, was not paid when due and the mortgagees duly foreclosed the mortgage by sale. The plaintiff was represented at the foreclosure sale by his attorney. The defendant's husband represented her, and was requested by the plaintiff's attorney to bid in the property on behalf of the defendant, but he refused to do so. The plaintiff's attorney bought the property for $3,527.65, which was the amount of the second mortgage, plus interest due thereon, and the expenses of foreclosure. The proceedings, so far as they appear, were in all respects pursuant to the power contained in the mortgage.
As the property was sold and bid in by the plaintiff for a sum sufficient to pay the mortgage debt, including interest due and expenses of sale, the liability of the defendant to the plaintiff to assume and pay this second mortgage was thereby extinguished.
The plaintiff has suffered no damage, and is not entitled to recover. Hood v. Adams, 124 Mass. 481, 26 Am. Rep. 687;Fenton v. Lord, 128 Mass. 466;Locke v. Homer, 131 Mass. 93, 41 Am. Rep. 199;Muhlig v. Fiske, 131 Mass. 110. See, also, Walton v. Ruggles, 180 Mass. 24, 61 N. E. 267;Pilok v. Bednarski, 230 Mass. 56, 119...
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Leshefsky v. American Employers' Ins. Co.
...a forfeiture. And it was not extinguished by the foreclosure sale. In this respect the case is distinguishable from Warneke v. Wyczatycki, 269 Mass. 179, 168 N.E. 740, relied on by the defendant. Furthermore, it must be assumed that the price paid at the foreclosure sale was the fair value ......
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Leshefsky v. American Employers' Ins. Co.
...as to save a forfeiture. And it was not extinguished by the foreclosure sale. In this respect the case is distinguishable from Warneke v. Wyczatycki, 269 Mass. 179 , relied on the defendant. Furthermore, it must be assumed that the price paid at the foreclosure sale was the fair value of th......
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Ansara v. Regan
...in Draper v. Mann, 117 Mass. 439;Hood v. Adams, 124 Mass. 481, 26 Am. Rep. 687;Muhlig v. Fiske, 131 Mass. 110, 114;Warneke v. Wyszatycki, 269 Mass. 179, 168 N. E. 740, was admissible as payment. The real issue made by the pleadings was whether anything remained due to Regan upon the note af......
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