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Browsing: Legal Papers of John Adams, Volume 1

This note contained in document ADMS-05-01-02-0006-0001-0001
6. For the development of foreclosure by sale, See 1 Glenn, Mortgages 405–407, 460–467. The Massachusetts practice of sale under a power of sale in the mortgage, also utilized in England and elsewhere, achieves similar results. Id. at 433–434, 610–614. See note 5 above. As to the action on the bond after foreclosure, it was first held that since a mortgage was a pledge, the mortgagee had to be content with the land while he held it, but that if he sold it and it produced a deficiency he could proceed on his bond. Tooke v. Hartley, Dickens 785, 21 Eng. Rep. 476 (Ch. 1784). Later the position was reversed and an action on the bond permitted only before sale, on the theory that since the action opened the right to redeem, the mortgagee could bring it only if he was still capable of reconveying the premises to the redeeming mortgagor. Perry v. Barker, 8 Ves. Jun. 527, 32 Eng. Rep. 459 (Ch. 1803); Lockhart v. Hardy, 9 Beav. 349, 50 Eng. Rep. 378 (Ch. 1846); see Dashwood v. Blythway, 1 Eq. Cas. Abr. 317, 21 Eng. Rep. 1072 (1729). If there had been provision for the award of a surplus of the sale proceeds over the debt to the mortgagor, these problems need not have arisen. See John J. Powell, A Treatise on the Law of Mortgages, 2:1001–1006 (London, 6th edn., T. Coventry, 1826). Even without such a provision, they did not arise in Massachusetts. See note 15 below.
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2018.