Warneke v. Wyczatycki

Crosby, J. . This is an action of contract to recover damages for an alleged breach of an agreement, contained in a deed, and comes before us upon a report of a judge of the Superior Court. On November 18, 1925, the plaintiff by warranty deed conveyed to the defendant certain parcels of land, sub [180] ject to a first mortgage of $5,500 and to a second mortgage of $3,300. It was recited in the deed that the grantee assumed and agreed to pay these mortgages as part consideration for the conveyance. The trial judge, upon the facts found by the auditor and the inferences drawn therefrom, ruled that the plaintiff was not entitled to recover. It appears from the report that interest due on the second mortgage, amounting to $67.65, was not paid when due and the mortgagees duly foreclosed the mortgage by sale. The plaintiff was represented at the foreclosure sale by bis attorney. The defendant’s husband represented her, and was requested by the plaintiff’s attorney to bid in the property on behalf of the defendant, but he refused to do so. The plaintiff’s attorney bought the property for $3,527.65, which was the amount of-the second mortgage, plus interest due thereon, and the expenses of foreclosure. The proceedings, so far as they appear, were in all respects pursuant to the power contained in the mortgage. As the property was sold and bid in by the plaintiff for a sum siifficient to pay the mortgage debt, including interest due and expenses of sale, the liability of the defendant to the plaintiff to assume and pay this second mortgage was thereby extinguished. The plaintiff has suffered no damage, and is not entitled to recover. Hood v. Adams, 124 Mass. 481. Fenton v. Lord, 128 Mass. 466. Locke v. Homer, 131 Mass. 93. Muhlig v. Fiske, 131 Mass. 110. See also Walton v. Buggies, 180 Mass. 24; Pilok v. Bednarski, 230 Mass. 56. What was said respecting the recovery of nominal damages in Furnas v. Durgin, 119 Mass. 500, 508, Locke v. Homer, supra, and Muhlig v. Fiske, supra, is not applicable to the facts in the case at bar. : Before this action was brought the defendant’s liability tinder the agreement to assume and pay the second mortgage had been fully satisfied. In accordance with the terms of the report judgment is to b'e entered for the defendant. So ordered.