129 Mass. 306 | Mass. | 1880
The only title which the defendants, under the power contained in the mortgage to them, had the right to advertise for sale, or to sell, was the title of the. mortgagor. Hall v. Bliss, 118 Mass. 554. There is no evidence that Ireland, the owner of the paramount title under the sales for nonpayment of taxes, authorized the defendants or the auctioneer to sell that title also, or that the defendants or the auctioneer undertook to sell it. On the contrary, the auctioneer, when called as a' witness for the defendants, testified that, at the time of the sale and before any bid was made, he said, in answer to an inquiry, that there were some outstanding tax titles. The evidence of previous conversations between the auctioneer and the defendants, not at the time and place of the sale, and of the private
If the defendants, in order to protect their title under the mortgage, and before selling under the power, had bought up the title of Ireland under the tax sales, they would h? had the right to add the sum so paid to the amount of the mortgage, and to apply the proceeds of the sale under the power to the payment of both. Davis v. Bean, 114 Mass. 360. Williams v. Hilton, 35 Maine, 547. Brown v. Simons, 44 N. H. 475. Mix v. Hotchkiss, 14 Conn. 32. But in that case the estate sold under the power would have been free of the incumbrance of the tax title.
So if the title put up and sold had been the entire estate, without deducting incumbrances, the sum bid would have been for the whole value of that estate, and if the defendants, out of that sum, had discharged the claim of Ireland, the plaintiff could not have maintained this action. O’ Connell v. Kelly, 114 Mass. 97. Alden v. Wilkins, 117 Mass. 216. Morton v. Hall, 118 Mass. 511.
But by the course actually pursued, the defendants have obtained bids only for the value of the estate, subject to that incumbrance, and now undertake to pay it off out of that value, thus in effect charging the mortgagor twice over with the amount of the incumbrance. They must therefore account to the plaintiff for the surplus of the purchase money, deducting only the amount due on the mortgage and the costs and expenses of sale. Appleton v. Bancroft, 10 Met. 231. Cook v. Basley, 123 Mass. 396. Hood v. Adams, 124 Mass. 481.
Judgment, on the verdict.