Johnson v. Cobleigh

Field, J. The sale and conveyance of the land under the power of sale contained in the mortgage cut off all the rights in the land which were subject to the mortgage; but these rights attached in equity to the surplus of the proceeds of the sale, after paying the mortgage debt and the expenses of the sale, in the same order of precedence as they had attached to the land itself. At the time of this sale the equity of redemption in the land subject to the mortgage belonged to the defendant, but the plaintiff, within one year after this equity of redemption had been sold on execution to the defendant, could have redeemed it by paying or tendering to the defendant the sum for which it had been sold, together with all sums paid for taxes and such sums as had been reasonably incurred in repairs and improvements, with interest, deducting the rents and profits with which the defendant was justly chargeable. Pub. Sts. c. 172, § 32. The Pub. Sts. c. 172, § 33, provide the means for enabling the [19] debtor to determine the amount to be tendered ; and it is enacted in § 39, that, if the pui’chaser does not within seven days after the tender release the premises, the debtor may recover them by writ of entry, with costs of suit; but before judgment is entered he must bring into court for the use of the purchaser the sum so tendered. By §§ 40-42 of the same chapter the debtor-may within the year, whether he has made a previous tender or not, bring a suit in equity for redemption, and may offer in his bill to pay such sum as shall be found due for redemption, which, when determined, he is required to bring into court for the use of the purchaser; and the purchaser cannot be required to pay costs unless he has unreasonably neglected to render a just and true account, or unless he has refused to receive a sufficient tender, and within seven days thereafter to execute a release. When the land was sold under the power contained in the mortgage, the value of the right to redeem the land from the mortgage was represented by the surplus of the proceeds of the sale over the sum necessary to satisfy the mortgage. The rights of the parties to this surplus are to be worked out in equity after the analogy of their rights under the statutes. If this surplus is more than the amount which the plaintiff would have been compelled to pay or tender, in order to redeem the equity of redemption from the sale made of it on execution, the plaintiff should be entitled to recover the excess, if he bring his suit within one year after the sale. Buttrick v. Wentworth, 6 Allen, 79. Andrews v. Fiske, 101 Mass. 422. Western Union Telegraph Co. v. Caldwell, 141 Mass. 489. Washburn v. Tisdale, 143 Mass. 376. After the mortgage was foreclosed, as the plaintiff was both to pay money to and receive money from the defendant, his right to recover would be limited to the remainder due from the defendant after the amount due from him to the defendant had been deducted. An account could be taken, and these two sums would be merely the opposite sides of the account. In the present case the account to be taken concerns only the two persons who are the plaintiff and the defendant, and therefore an action at law for money received by the defendant to the plaintiff’s use is, under our practice, an appropriate proceeding for recovering the amount due. Although the exceptions recite that “ no tender or offer of payment was ever made to the de [20] fendant of the amount paid by him as purchaser of the debtor’s interest at the execution sale, and no demand was ever made on him for payment of the sum for which the action was brought except by bringing this action,” yet the question of the necessity either of a previous tender, or of a previous demand, has not been argued by the counsel of either party, and we consider this objection as waived. Apparently, both counsel desired the opinion of the court upon the principal question in the case. Exceptions overruled.