Hopkins v. McCrillis , 158 Mass. 97 ( 1893 )

Barker, J.

The bill is drawn upon the theory that the mortgage, notwithstanding the partial foreclosure sale, is still a lien upon so much of the mortgaged property as remains unsold. But in his exceptions to the master’s report, the plaintiff attempts to put his case upon the theory that the partial sale exhausted the power, and released the remaining property. There is no occasion to consider whether the sale exhausted the power, as that question is not raised in the bill; and if the power is exhausted, which we do not intimate, the lien of the mortgage is not thereby defeated, and may be enforced as though no power of sale had been inserted. The contention that the partial sales are void, and that the account should be stated without reference to them, is absurd. None of the exceptions to the master’s report have any foundation. The plaintiff is not to be allowed to repudiate transactions entered into solely for his benefit and at his request, and all the items to which he objects are legitimate results of such transactions.-

The finding as to' waiver is pertinent, and supported by the facts found.

The result is that the exceptions to the master’s report are overruled, and the decree of the Superior Court is affirmed, such modifications to be made in that court as the lapse of time may require.

Exceptions to master’s report overruled, and decree affirmed.