Mellen v. Wallach

Syllabus

<p>Under a deed oí trust to secure M.„ covering land in the District of Columbia, owned by B. and W., as tenants in common, tbe land was sold to B.,- in 1873. The amount secured by the deed was $5,000 of principal and $2,439.02 interest, expenses and taxes. The sale was for enough to pay all this and leave a sum due to W. for her share of the surplus. The terms of sale were not carried out, but M. advanced to B. $3,200 more (out of which the $2,429.02 was paid), and took a deed of trust for $8,200, which was recorded as a first lien. A deed of trust to secure the amount going to W. was recorded as a second lien, hut was never accepted by W. Litigation afterwards ensued, to which M and B. and W. were parties, and in which a sale of the land was ordered and made' in 1889, and HI. bought it, for a sum not sufficient to pay the $7,429.03, with interest, and the subsequent taxes on the land. W. claimed priority out of the purchase money for her share of the surplus on the sale of 1878, and M. claimed the right to set off against the purchase’money enough of her claim for the $7,429.03, and interest, and the subsequent taxes, to absorb it: Reid, that the parties had abandoned the sale of 1878, and that the sale of 1880 must be regarded as a sale to enforce the original deed of trust to secure M., and that W. had no right to any of the proceeds of the sale of 1880.</p>