313 Mass. 752 | Mass. | 1943
One Taylor died in 1931 owning real estate which was’ subject to four mortgages held by the defendant and given by Taylor to secure his promissory notes. The mortgages were for $5,000, $5,000, $5,000 and $2,000 respectively. By his will he devised nineteen twentieths of his estate to his widow and one twentieth to his niece. His widow was made executrix. On February 11, 1938, the real estate was sold by the defendant under a foreclosure
On February 25, 1938, the defendant conveyed the real estate to one Carey. It does not appear that the real estate was conveyed subject to the three earlier mortgages, and that it was not is indicated by the facts that the land was expressly conveyed subject to “easements of the Commonwealth of Massachusetts for sewerage purposes” and that Carey gave a mortgage back to the defendant for $19,500. This accords with the finding of the trial judge.
This action was brought by the plaintiff assignee to recover the surplus. The defence is based upon the fact, stated in the answer, that the defendant applied the surplus towards the reduction of the sum of $13,443.28 owed it on the three earlier mortgage notes. In a District Court-the trial judge found for the plaintiff, and the Appellate Division dismissed a report. The defendant appealed to this court.
Upon the foreclosure, the surplus stood in the place of the equity of redemption previously existing, and belonged to the devisees of Taylor. Mattel v. Conant, 156 Mass. 418, 422. Hunneman v. Lowell Institution for Savings, 205 Mass. 441, 445. Dennett v. Perkins, 214 Mass. 449. We assume without deciding that the three earlier mortgage debts were not extinguished by merger. Sullivan v. Neary, 186 Mass. 158, 160. We assume also without deciding that the set-off of the surplus against the earlier mortgage notes was not precluded by the fact that the surplus belonged to the devisees while the notes were owed by the executrix in her
The case is governed in principle by Natick Five Cents Savings Bank v. Bailey, 307 Mass. 500, 503. In that case a mortgagee purchased the land at a foreclosure sale under his mortgage subject to all taxes. He then brought an action to recover from the mortgagors the amount of taxes paid, under the covenant to pay taxes contained in the mortgage. This court held that the payment by the mortgagee of the taxes “was in substance a payment of a part of the purchase price of the real estate that it acquired at the foreclosure sale,” and that recovery by the plaintiff for taxes “would be a double recovery by the plaintiff.” See also Skilton v. Roberts, 129 Mass. 306; Spencer Savings Bank v. Cooley, 177 Mass. 49; Antonellis v. Weinstein, 258 Mass. 323. Nothing in the requests for rulings requires further discussion.
Order dismissing report affirmed.