| Mass. | Oct 22, 1875
The judge who tried the case without a jury, and to whose decision on questions of fact no exception lies, was warranted in finding, as matter of fact, that by the understanding and agreement of all parties — the plaintiffs, holding the second mortgage, Babbitt, who held the first mortgage and acted as auctioneer at the sale, and the purchaser—the whole estate, and not merely the right of redeeming the land from the first mortgage, was put up, bid for, sold and conveyed; and, upon such finding, in ruling as matter of law that the mortgage to Babbitt was to be first paid out of the proceeds. White v. Whitney, 3 Met. 81, 86. Abby v. Fuller, 8 Met. 36. Church v. Savage, 7 Cush. 440. Alden v. Wilkins, 117 Mass. 216" date_filed="1875-02-12" court="Mass." case_name="Alden v. Wilkins">117 Mass. 216. Exceptions overruled.