Mellen v. Wallach
112 U.S. 41 (1884)

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U.S. Supreme Court

Mellen v. Wallach, 112 U.S. 41 (1884)

Mellen v. Wallach

Argued April 24, 1884

Decided November 3, 1884

112 U.S. 41

Syllabus

Under a deed of trust to secure M. covering land in the District of Columbia owned by B. and W. as tenants in common, the land was sold to B., in 1873. The amount secured by the deed was $5,000 of principal and $2,429.02 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, but 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 1880, and M. bought it, for a sum not sufficient to pay the $7,429.02, with interest, and the subsequent

Page 112 U. S. 42

taxes on the land. W. claimed priority out of the purchase money for her share of the surplus on the sale of 1873, and M. claimed the right to set off against the purchase money enough of her claim for the $7,420.02, and interest, and the subsequent taxes, to absorb it. Held that the parties had abandoned the sale of 1873, 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.

The facts which make the case are stated in the opinion of the Court.

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