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136 Mass. 378

Callaghan v. O'Brien

Massachusetts Supreme Judicial Court

Decided January 31, 1884

Massachusetts Supreme Judicial Court · decided 1884-01-31

<p>T. conveyed a parcel of land to 0. by a mortgage not containing a power of sale, and, after a breach of the condition, 0. made an entry for possession, and after-wards assigned the mortgage to the wife of M., “ together with the possession taken to foreclose said mortgage.” The consideration expressed in the assignment was the same as that in the mortgage. The heirs of T., one of whom was the wife of O., together with 0., who joined in the deed, conveyed the land to M., “subject to a mortgage” described, which was the one above named. M. then mortgaged the land to 0., with full covenants of warranty and against incumbrances. M.’s wife did not join in the grant, but joined in the in testimonium clause, releasing her rights of dower and homestead, and as follows: “ And also, as further security for the mortgage, I release and convey my interest under the mortgage given by T. to 0.” She died intestate, leaving her husband M. and a child surviving her; and letters of administration were taken out on'her estate. O., for breach of the condition of the mortgage from M., sold the land, under a power of sale in the mortgage, by public auction. Held, in an action by the purchaser at the sale against 0., to recover the amount of a deposit made in accordance with the terms of sale, on the ground that the title to the land was defective, that the mortgage from T. to 0. was not extinguished, and was an outstanding title. Held, also, that evidence of the manner in which the consideration of the deed to M. was paid, and of the purpose for which the assignment to M.’s wife was made, was inadmissible to control the effect of the conveyances.</p> <p>A mortgagee advertised to sell by public auction, under the power of sale in his mortgage, “ all and singular the premises described in said mortgage, namely, a certain parcel of land,” describing it by metes and bounds, and stating that “ the above premises are to be sold subject to taxes.” The terms of sale referred to the premises as “frame building and land mentioned and described in the printed advertisement.” The memorandum signed by the purchaser stated that he was the purchaser “ of the above described estate in the printed advertisement ; ” and the receipt giveh by the auctioneer to the purchaser, for the amount deposited in accordance with the terms of sale, acknowledged payment of that sum as part payment of the price “ of house and land.” Held, that it was the intention to sell the land, and not an equity of redemption; and that the purchaser must have so understood.</p> <p>If a mortgagee, selling the mortgaged premises by public auction, is bound, but does not offer, to give a good title thereto, the purchaser at the sale is entitled, in an action for money had and received, to recover the amount of a deposit made in accordance with the terms of sale.</p>

Relies on Riggs v. . Pursell · Fryer v. . Rockefeller · Pickman v. Trinity Church

Good law ✅— No negative treatment on recordhow we know

Decided 1884-01-31

How this case has been cited

Cited by 5 later decisions — most recently November 1929

5 state decisions

2018841890190019101920decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Field, J.

¶1At the time of the conveyance by John Toomey, Ellen O’Brien, and Thomas O’Brien to Timothy J. Mahoney of the land subject to the mortgage for $1033.33, this mortgage, “ with the possession taken to foreclose said mortgage,” was assigned by Thomas O’Brien to Bridget F. Mahoney, wife of Timothy J. Mahoney. Timothy J. Mahoney mortgaged back the land so conveyed to him, with full covenants of warranty and against incumbrances, to Thomas O’Brien for $1000, and his wife, not joining in the grant, joined with him in the in testimonium clause, as follows: “ And for the consideration aforesaid, I, Bridget Mahoney, wife of said Timothy J., do hereby release unto the grantee and his heirs and assigns all right of or to dower and homestead in the granted premises, and also, for further security for this mortgage, I release and convey my interest under the mortgage given by Daniel Toomey to said Thomas O’Brien,” which was the mortgage for $1033.33. If these words have any effect, they assigned the mortgage for $1033.33 to Thomas O’Brien, as security that the debt of $1000 secured by the mortgage from Timothy J. Mahoney to him should be paid, and, on payment of this debt, Bridget F. Mahoney would be entitled to a reassignment to her of the mortgage she had assigned. If Mahoney paid his mortgage, and it was discharged, he would then hold the equity of redemption, and his wife would hold the first mortgage. According to the legal effect of the- conveyances, if the purchase made in this case were carried out, the remainder of the purchase money (after satisfying the mortgage debt of $1000, with interest and the expenses *383of the sale) would belong to Timothy J. Mahoney, who would be liable on the covenants in his deed of mortgage, and the administrator of the estate of Bridget F. Mahoney would be entitled to an assignment of the mortgage for $1033.33. If there are any equities existing between the defendant Mahoney and his wife, which control this effect of the conveyances, they cannot be determined in this action. It is immaterial whether this last-named mortgage has been foreclosed by the entry for possession and the lapse of time, or not. If the fact that the equity was held by Mahoney and the mortgage by his wife prevented the foreclosure, still it did not extinguish the mortgage, and, on the face of the conveyance, it is an outstanding title.

¶2In an action at law, the evidence recited of the manner in which the $2000 was paid, which was the consideration of the deed of John Toomey and others to Timothy J. Mahoney, as well as the evidence of the purpose for which the assignment of the mortgage for $1033.33 was made, is inadmissible to control the effect of the conveyances. This evidence does not tend to show that the first mortgage was in fact paid, and intended to be discharged. It follows, that the defendant could not give a good title to the land by a sale under the power contained in the mortgage to him, independently of the question whether Patrick Toomey had died intestate and unmarried.

¶3By the advertisement and terms of sale, it was plainly the intention to sell the land, and not an equity of redemption. The purchaser must have so understood. The defendant is bound to give, but does not offer to give, a good title to the land, and the plaintiff is therefore entitled to recover the deposit of money she made. Swan v. Drury, 22 Pick. 485. Pickman v. Trinity Church, 123 Mass. 1, 6. Fryer v. Rockefeller, 63 N. Y. 268. Riggs v. Pursell, 66 N. Y. 193.

¶4 Judgment on the verdict.

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