Cook v. Basley
Massachusetts Supreme Judicial Court
Contract for money had and received. At the trial in the Superior Court, before Gardner, J., the material facts appeared to be as follows : Caleb C. Thomas, owning a lot of land, made two mortgages thereof to one Capen, a third mortgage to the defendant, and a fourth mortgage to the plaintiffs.
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Contract for money had and received. At the trial in the Superior Court, before Gardner, J., the material facts appeared to be as follows : Caleb C. Thomas, owning a lot of land, made two mortgages thereof to one Capen, a third mortgage to the defendant, and a fourth mortgage to the plaintiffs. All the debts secured by the mortgages being overdue and unpaid, and Thomas still owning the equity of redemption, the defendant entered for breach of condition of his mortgage, and advertised and sold the premises, under the power of sale contained therein, for a sum sufficient to pay the costs and…
1Opinion of the CourtGray, C. J.
Upon a sale under a power contained in a mortgage of real estate, the proceeds belong to those who owned the legal title before the sale; and the mortgagee making the sale is bound, after deducting the amount of his own mortgage debt, with the costs and expenses of the sale, to pay the surplus remaining in his hands to the mortgagor or his assigns, according to their respective titles. Where the rights claimed under the mortgagor, subject to the mortgage, have been acquired by attachment and execution against him, difficulties may arise as to the form of remedy. But where those rights have…
2Cases cited6 opinions
- Wiggin v. HeywoodMassachusetts Supreme Judicial Court · 1875
- Gardner v. BarnesMassachusetts Supreme Judicial Court · 1871
- O'Connell v. KellyMassachusetts Supreme Judicial Court · 1873
- Alden v. WilkinsMassachusetts Supreme Judicial Court · 1875
- Morton v. HallMassachusetts Supreme Judicial Court · 1875
1 more not listed; retrieve them via the Exa API.
3Cited by19 opinions
- Brooks v. BennettMassachusetts Supreme Judicial Court · 1931
- Brown v. Crookston Agricultural Ass'nSupreme Court of Minnesota · 1886
- Tompkins v. DrennenSupreme Court of Alabama · 1891
- Knowles v. SullivanMassachusetts Supreme Judicial Court · 1902
- Donohue v. ChaseMassachusetts Supreme Judicial Court · 1881
14 more not listed; retrieve them via the Exa API.