Alden v. Wilkins
Massachusetts Supreme Judicial Court
Contract for money had and received. The declaration alleged that the defendant bad received $500, from the sale by him of mortgaged real estate, of which the plaintiff had the equity of redemption, and that the defendant was bound to account to the plaintiff therefor.
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Contract for money had and received. The declaration alleged that the defendant bad received $500, from the sale by him of mortgaged real estate, of which the plaintiff had the equity of redemption, and that the defendant was bound to account to the plaintiff therefor. Trial in the Superior Court, before Pitman, J., who, after verdict, reported the case to this court as follows : ■ The plaintiff derived his title to the equity of redemption from a sheriff’s deed of the same to him as purchaser, at a sale thereof, under a levy of execution, in favor of the plaintiff, in a suit brought by him…
1Opinion of the CourtWells, J.
The evidence reported by the auditor tended to show that the sale under the power was voidable, so that the owner of the equity might disregard the attempted foreclosure and redeem the premises from the mortgage. But a recovery of the surplus of the proceeds, as money had and received, would imply an affirmation of the sale.
The mortgagee would undoubtedly be held accountable for the full amount of the consideration of the sale, if he perfected it by a conveyance, whether he actually received it or not. But the purchase money may properly be applied to the extinguishment of incumbrances in…
2Cited by10 opinions
- Brooks v. BennettMassachusetts Supreme Judicial Court · 1931
- Cook v. BasleyMassachusetts Supreme Judicial Court · 1877
- Donohue v. ChaseMassachusetts Supreme Judicial Court · 1881
- Barry v. DudleyMassachusetts Supreme Judicial Court · 1933
- Davis v. Newburyport Five Cents Savings BankMassachusetts Supreme Judicial Court · 1942
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