Fudin v. Kane

RESCRIPT

This case is before us for assessment of damages after default of the defendants.

The case is brought to recover the balance due to the plaintiff as mortgagor after foreclosure of the second mortgage by the defendants and the purchase of said property at said mortgagee’s sale by said defendants.

■Said defendants purchased said property at the mortgagee’s sale for $15,000. The amount of said second mortgage was $12,000, on which there was accrued interest of $248.51. There is also payable upon said mortgage the expenses of foreclosure, $100. The difference between said sums and the purchase price is $2651.49. Interest upon this at 6% from November 16, 1923, to October 4, 1926, is $460.48.

The defendants claim that they supposed that they were bidding for said property clear of any encumbrances of the first mortgage of $6,000. It appears, however, that they advertised it to be sold subject to the first mortgage; that the auctioneer stated he was selling it subject to the first mortgage and that the mortgagee’s deed states that it was sold subject to the first mortgage.

Under the authority of Brunette vs Myette, 40 R. I. 546, we feel that we must disregard this claim of the defendants and therefore ’give judgment for the plaintiff- for $3111.97.