117 Mass. 216 | Mass. | 1875
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 accordance with the terms of the sale. Abby v. Fuller, 8 Met. 36.
The incumbrances upon this property, including the defendant’s mortgage and the homestead right, were of greater amount than the whole price for which the sale was made. These were
Judgment on the verdict.