Hoult v. Ramsbottom

CHIPMAN, C.

Plaintiff brings this action for an accounting with defendant Ramsbottom; also for judgment against him for the surplus resulting from the proceeds coming into his hands upon the foreclosure of certain mortgages held by him as collateral security for plaintiff’s debt; also for an assignment to plaintiff of a certain deficiency judgment arising out of said foreclosure proceedings, and for general relief. The court found as facts that Ramsbottom loaned plaintiff two thousand dollars' and directed plaintiff to execute and deliver to defendant Sum

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merville his promissory note therefor, which was done; that as security for said note Eamsbottom directed plaintiff to assign to Summerville a certain note executed by W. J. and J. F. Hoult to plaintiff for five thousand five hundred dollars, together with a certain mortgage on real estate and a certain chattel mortgage, both given by said W. J. and J. F. to plaintiff to secure said last-mentioned note; that Summerville had no interest in the transaction and was acting merely as Bamsbottom’s agent, except that subsequently in certain foreclosure proceedings he acted, through his attorney, defendant Webster, for the benefit of plaintiff. Summerville foreclosed the mortgage on the real estate, and the property was sold by a commissioner and was bid in by Summerville, the plaintiff in the action, for five thousand five hundred dollars; a certificate of purchase of the land was issued to him and for the deficiency Summerville had a judgment. As to this sale the court found that Summerville made the bid and purchase for said sum and took the certificate in. his own name while acting, “as in the matter of said two thousand dollar note, for the benefit of Eamsbottom,” and that he, Summerville, had no interest whatever in the purchase; that the foreclosure proceedings were conducted by Webster as Summerville’s attorney of record, and said bid and purchase were made by Summerville through Webster, under an agreement with plaintiff “that said foreclosure proceedings should be conducted in Hoult’s (plaintiff’s) interest, and that five thousand five hundred dollars of the judgment in said proceedings in favor of D. J. Hoult (plaintiff) should be bid and used in the name of Summerville at the foreclosure sale”; that Webster was employed and paid cash in part by plaintiff to foreclose the mortgage, and was promised a further fee if it could be realized from the judgment; that the bid was made for the accommodation of Webster, Summerville, Eamsbottom, and plaintiff as above stated, and “in pursuance of the premises described in the undenied allegations of the complaint.” What these “premises” or “undenied allegations” are the court does not point out. The admissions, so far as we discover, are that Summerville paid no money on account, of the purchase; that the judgment in the foreclosure was for six thousand four hundred and seventeen dollars and fifteen cents and that he bid five