Hicks v. Bingham

11 Mass. 300

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1814
• Status: Published

Opinion

Putnam, J.,

delivered the opinion of the Court.

The only question made by the respondent upon the first issue is, whether she is bound to apply the two hundred dollars received of Willard towards the payment of the debt secured by the mortgage, or has a right to apply it towards the discharge of other debts due to her from Pepoon, the mortgagor, which were not included in the sum secured by the mortgage.

And we are all of opinion that the respondent is bound to apply the consideration, which she received for a release of a part of the mortgaged premises, towards payment of the mortgage. It was received by her in consequence of the mortgage; and the price oi the land mortgaged, as well as the rent of it, received by the mort gagee, ought to be applied towards the extinguishment of the debt secured by the mortgage.

Upon the second issue, we are of opinion that the respondent is. and has been, since her entry for condition broken, in legal con templation, in possession of the demanded premises.

Judgment is to be entered for the plaintiff for possession of the premises demanded, and for his costs,

(a)

Dorsey vs. Gassaway, 2 Har. Johns. 412. — Gwinne & Ux vs. Whitaker Admr 1 Har. & Johns. 465.