O'Connell v. Kelly

114 Mass. 97

Opinion

Wells, J.

The principle of estoppel does not apply between these parties. If it did, the evidence offered by the defendant was not in contradiction of his deed or of his affidavit. Neither of those recites that the $1850 was received for the right to redeem from the first mortgage, or for the premises subject to the first mortgage. The plaintiff’s action is in affirmance of the proceedings of sale. The evidence offered and rejected was competent to show how much of the money received upon that sale ought in equity and good conscience to be paid over to the plaintiff, as having the right to redeem both mortgages. Abby v. Fuller, 8 Met. 36.

Exceptions sustained.