The evidence reported by the auditor tended to show that the sale under the power was voidable, so that the owner of the equity might disregard the attempted foreclosure and redeem the premises from the mortgage. But a recovery of the surplus of the proceeds, as money had and received, would imply an affirmation of the sale.
The mortgagee would undoubtedly be held accountable for the full amount of the consideration of the sale, if he perfected it by a conveyance, whether he actually received it or not. But the purchase money may properly be applied to the extinguishment of incumbrances in accordance with the terms of the sale. Abby v. Fuller, 8 Met. 36.
The incumbrances upon this property, including the defendant’s mortgage and the homestead right, were of greater amount than the whole price for which the sale was made. These were *219all specified as such in the statement of terms upon which it was first offered by the auctioneer. Failing to obtain any bid above their whole amount, he accepted the highest bid offered for the property, that is, for the whole estate, which was less than the amount of the incumbrances. This the mortgagee might accept, if willing to submit to the deficiency. Whatever other objection the plaintiff might make to the proceeding, he shows no money had and received to his use by the defendant. We do not pass upon the validity of the plaintiff’s title.
Judgment on the verdict.