O'Connell v. Kelly
Massachusetts Supreme Judicial Court
Contract for $1350, money had and received by the defendant to the plaintiff’s use, being the amount received by the defendant beyond what was necessary to satisfy his mortgage, upon a sale under a power contained in a mortgage deed of land of which the plaintiff owned the equity of redemption.
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Contract for $1350, money had and received by the defendant to the plaintiff’s use, being the amount received by the defendant beyond what was necessary to satisfy his mortgage, upon a sale under a power contained in a mortgage deed of land of which the plaintiff owned the equity of redemption. At the trial in the Superior Court, before Wilkinson, J., without a jury, the following facts were admitted: . June 25, 1868, the premises were conveyed to one Alexander, subject to a mortgage to one Whitney, to secure the payment of $1000 with interest. September 10, 1869, Alexander mortgaged the…
1Opinion of the CourtWells, J.
The principle of estoppel does not apply between these parties. If it did, the evidence offered by the defendant was not in contradiction of his deed or of his affidavit. Neither *99of those recites that the $1850 was received for the right to redeem from the first mortgage, or for the premises subject to the first mortgage. The plaintiff’s action is in affirmance of the proceedings of sale. The evidence offered and rejected was competent to show how much of the money received upon that sale ought in equity and good conscience to be paid over to the plaintiff, as having the right to redeem both…
2Cited by14 opinions
- Brooks v. BennettMassachusetts Supreme Judicial Court · 1931
- Cook v. BasleyMassachusetts Supreme Judicial Court · 1877
- Donohue v. ChaseMassachusetts Supreme Judicial Court · 1881
- McLemore v. Hyundai Motor Manufacturing Alabama, LLCSupreme Court of Alabama · 2008
- Union Bank & Trust Co. v. RoyallSupreme Court of Alabama · 1933
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