Brown v. Judd

OPINION OF THE COURT BY

FREAR, C.J.

The plaintiff was the purchaser on execution sale of a mortgagor’s equity of redemption. The defendants were the attorneys for the mortgagee on foreclosure under a power of sale ■contained in the mortgage, which also provided that the mortgagee might retain from the proceeds of the sale a reasonable attorney’s fee. The action is brought to recover, under a count for money had and received an alleged excess retained as an attorney’s fee from the proceeds of the foreclosure sale, — on the theory that such excess is a part of the surplus payable to the mortgagor…