The excess, though in the form of money, remains, as before, impressed with the character of the land." See also LaCentra v. Jackson, 245 Mass. 14 ( 139 N.E. 429); Zelley v. Zelley, 101 N.J. Eq. 37 ( 136 A. 738); Roy v. Roy, 233 Ala. 440 (4) ( 172 So. 253). The theory of transferring liens divested by sales to the proceeds is not new in this State. It is true in cases of sales by administrators and executors. Code, ยง 113-1709; Middleton v. Westmoreland, 164 Ga. 324 ( 138 S.E. 852). Where property subject to a lien is sold under judicial process, the lien is divested from the property and attaches to the proceeds of the same, upon proper notice by the party claiming the lien to the officer to hold the money.
1. There is authority sustaining the contention that only by a common-law action may recovery be had on the bond. Phillips v. Gilbert, 101 U.S. 721; La Centra v. Jackson, 245 Mass. 14 ( 139 N.E. 429); Martin v. Swift; 120 Ill. 488 ( 12 N.E. 201). But the court of appeals of New York in Morton v. Tucker, 145 N.Y. 244 ( 40 N.E. 3), in a well-reasoned opinion held that an equitable proceeding was an appropriate remedy, and pointed out that in such a proceeding all parties could be brought before the court and their equities adjusted. This court followed the New York court in Grace Harbor Lumber Co. v. Ortman, 190 Mich. 429, which was a proceeding in equity.
]" In La Centra v. Jackson, 245 Mass. 14, 139 N.E. 429, 430, involving a mechanic's lien, the court said: "The foreclosure of the first mortgage did not operate to discharge the incumbrance of the lien, but in equity it attached to the proceeds of the sale over the amount due on the mortgage and expenses of sale; the surplus remaining stood in the place of the property, and could be reached and applied in payment of the amount of the lien found to be due, unless and until a valid bond had been approved and filed discharging the lien." In Knowles v. Sullivan, 182 Mass. 318, 65 N.E. 389, the court said (opinion by Holmes, C.J.): "The land having been sold under the paramount title of the mortgagee, the lienholders' claim is regarded by equity as transferred to the surplus proceeds."
A claimant is of course not precluded from filing a separate, timely complaint to enforce a bond under ยง 14. See National Lumber II, supra at 725; LaCentra v. Jackson, 245 Mass. 14, 19-20 (1923). NES Rentals argues that Maine Drilling and Berkley did not properly give service of notice of the bond to NES.
A claimant is of course not precluded from filing a separate, timely complaint to enforce a bond under ยง 14. See National Lumber II, supra at 725, 802 N.E.2d 82;LaCentra v. Jackson, 245 Mass. 14, 19โ20, 139 N.E. 429 (1923). NES Rentals argues that Maine Drilling and Berkley did not properly give service of notice of the bond to NES.
There was no error. The bank's counterclaim sufficiently averred that two or more parties were asserting a right to the funds in its hands. LaCentra v. Jackson, 245 Mass. 14, 18. Antonellis v. Weinstein, 258 Mass. 323, 325. The case falls within the accepted rule as to interpleader stated in Gonia v. O'Brien, 223 Mass. 177, 179.
The Glide, 72 Fed. Rep. 200. The New York, 104 Fed. Rep. 561. The Gerald A. Fagan, 49 Fed. Rep. 2d 215, 217, affirmed sub nomine Marine Transit Corp. v. Dreyfus, 284 U.S. 263, 277. Elliot v. Lombard, 66 Fed. Rep. 2d 662. 1 Benedict, Admiralty (5th ed.), ยงยง 364, 373, 374. See also, under our mechanics' lien law, La Centra v. Jackson, 245 Mass. 14. Neither claim was a "future claim" which might arise against a "vessel interest," but each was a claim which could not be enforced against the schooner or any interest therein.
That principle is illustrated by many decisions. Wiggin v. Heywood, 118 Mass. 514. Wood v. Westborough, 140 Mass. 403. Western Union Telegraph Co. v. Caldwell, 141 Mass. 489. Worcester v. Boston, 179 Mass. 41. LaCentra v. Jackson, 245 Mass. 14. That principle is inapplicable to the present proceeding. The remedy given to the plaintiff by the statute is to maintain an action "against the person assessed" for the tax. He seeks to maintain his action not mainly against that person but against the National Shawmut Bank against which the tax was not assessed but which has recovered a verdict, in its own name, absorbing the entire fund.
The Supreme Judicial Court of Massachusetts also follows the rule adopted by the Supreme Court of the United States. See LaCentra v. Jackson, 139 N.E. R. 429. The text writers have also very largely followed the rule laid down in Phillips v. Gilbert, supra, citing that case and the Massachusetts case in support of their position.
This ruling was correct. The foreclosure of the third mortgage did not operate to discharge the encumbrance of the liens, but in equity they attached to the proceeds of the sale over the amount due on the third mortgage and expenses of sale. Wiggin v. Heywood, 118 Mass. 514. Maguire v. Spaulding, 194 Mass. 601. LaCentra v. Jackson, 245 Mass. 14, 18. The defendant, Shapiro, acting through his agent Kelly, advertised the property for sale subject to the two prior mortgages and bid in the property for a sum in excess of his own mortgage.