129 Mass. 44 | Mass. | 1880
The plaintiff in his declaration alleges that the defendant was the mortgagee of an estate in Revere, and that he was a creditor of the owner of the equity of redemption in that estate ; that the defendant foreclosed its mortgage and sold the estate for the sum of $8395, which was duly paid, of which sum the defendant was entitled to receive and retain the amount due upon its mortgage with interest and taxes amounting to $6170.58, leaving a balance in its hands of $2224.20. This balance the plaintiff alleges he is entitled to recover by virtue of judgment of the Superior Court, giving him all the right to the proceeds of the sale, after paying the amount due the defendant. The defendant in its answer alleges, among other defences, that all the matters set forth in the plaintiff’s declaration were neard and determined in a bill in equity, wherein the plaintiff and defendant were parties, and that it has paid to the plaintiff all that it was required to pay by the decree. The bill in equity, together with the answer thereto and the decree of the court therein, is annexed and made part of this bill of exceptions.
It appears by the bill, which was originally brought by William S: Macfarlane against the defendant and one Mary Wilcutt.
Thereupon the bill was amended, and the several persons were made parties who were alleged to have demands against this fund in the hands of the defendant bank; and they were summoned to appear in order that their several claims and liens upon the fund might be determined. Among the persons so summoned were Charles H. Chellis and Charles Powers, the plaintiff, who both appeared and answered. The plaintiff in his answer alleged that he was entitled to receive the surplus in the hands of the bank after paying the amount of its mortgage and interest thereon.
It is to be observed that the plaintiff in his answer thus claimed to be entitled to receive the whole balance in the hands of the bank after paying the mortgage debt with interest and taxes, which amounted to the sum of $6170.72; this sum deducted from the amount received by the bank on the sale leaves $2224.28, which is the amount which he claims to recover in this action.
Issue was duly joined on the answer, and a decree was entered, to which the parties, including the plaintiff and defendant in this action, consented; and, by that decree, the plaintiff Macfarlane was entitled to receive out of the funds or balance in the hands of the defendant bank the sum of $300 with interest and costs, and after the payment to Macfarlane the bank was to retain its own costs as a party defendant, pay Charles H. Chellis $150, and then to “pay the balance of said fund in its hands remaining, or for which it is properly accountable, to Charles Powers.” The decree does not state the amount of that fund.
