143 Mass. 72 | Mass. | 1886
Both parties agree that the only question is whether the special allegations of the declaration entitle the plaintiff to recover. If the allegation of a sale to the defendant under the power in the mortgage, coupled with the averment that “ the record thereof is in B. 946, p. 311,” standing alone, could be construed as an informal allegation that the sale was perfected by conveyance, the plaintiff would have no claim against the defendant for the price, because she was a stranger to the defendant’s contract. She would have no claim against him in respect of rents and profits subsequently received, because those would belong to the defendant.
But the allegations mentioned are followed by specific averments that the mortgage was assigned on the day of the foreclosure sale, and that the-defendant “became charged with the trusts therein contained,” whatever they may have been. This suggests that, instead of carrying out the sale, the parties substituted an assignment of the mortgage, and this seems to be the view taken by the plaintiff’s counsel in his argument. But in that casé the price bid at the auction would not have been due,
It would rather seem, however, that the declaration was intended to set up both a completed sale to the defendant under the power, and a subsequent assignment to him of the mortgage, a satisfaction of the mortgage debt by applying it on the sum due from the defendant as purchaser under the power, and a double claim against him for the balance due upon the sale, and also for the rents and profits received by him; the latter claim treating him as a person claiming under the mortgagee, who has received more than is due upon the mortgage. Pub. Sts. c. 181, § 43. Supposing this to have been what the pleader intended to aver, the objections to the declaration are not less obvious than those already stated. If the sale was completed, the mortgage was extinguished, and the acceptance of a formal assignment of it by the defendant would not cut down his right to the rents and profits, which had become absolute as against the plaintiff, the mortgagor, by the mortgagee’s conveyance under the power of sale. So the bare form of assignment of an extinct mortgage, without more, would not make the defendant liable to an action by the plaintiff for the sum due on the purchase under the power. The defendant’s contract with the mortgagee would remain in force, and would still be the only source of his obligations. In thus dealing with the substantive questions raised or suggested, we do not mean to imply that the ruling of the court was not sufficiently justified by the obscurity and inconsistency of the declaration.
Exceptions overruled.