1. The defendant Fannie M. Syrjala (Syrjala) appeals from a judgment of the Probate Court ordering her to convey a parcel of land and the house thereon at 326 Reed Street, in Hanson, to the plaintiff, who is her daughter-in-law. Pursuant to the defendant's request for a report of material facts, the judge found substantially as follows. In 1966 the plaintiff desired to purchase the Reed Street property for her family which then consisted of herself, her husband and their six children. Because of a question about her ability to obtain financing, she asked Syrjala to help her. Syrjala agreed, saying she would take title to the property in her own name and would later convey it to the plaintiff. Syrjala raised the purchase price of $14,900 as follows: she took out two mortgage loans from the North Abington Co-operative Bank, one for $4,900 secured by a mortgage on her own home at 41 Robbins Avenue in Abington, and the other for $10,000 secured by a mortgage on the Reed Street property.
2. The plaintiff and her family occupied the Reed Street property. The plaintiff made the monthly payments of principal and interest payments on both mortgages, and as to the Reed Street property she paid all the taxes and expenses of upkeep and also made various repairs and improvements thereto costing about $3,000. In January, 1972, the plaintiff's husband left her and went to live with his mother, Syrjala. The plaintiff requested Syrjala to convey the Reed Street property to her and Syrjala refused to do so. The plaintiff started the action in February, 1972, and the judgment was entered therein on January 12, 1978.
3. The findings filed by the judge on April 5, 1978, stated that on July 1, 1975, the bank had foreclosed its mortgage on the Reed Street property, and that the foreclosure sale had resulted in a surplus of $14,470.45 which is on deposit with the bank in the name of the judge of probate. The judge concluded that this surplus is "impressed with a resulting trust for the benefit of Jeanette B. Hill subject to payment of any monies due on the mortgage given by Fannie M. Syrjala on her own property at 41 Robbins Avenue, Abington, Massachusetts, to secure part of the purchase money."
4. The judge's findings were warranted on the evidence, and his legal conclusion that the surplus from the foreclosure sale is impressed with a resulting trust for the benefit of the plaintiff is correct.
Collins v. Curtin, 325 Mass. 123 , 125 (1949). Gerace v. Gerace, 301 Mass. 14 , 17-18 (1938). McDonough v. O'Niel, 113 Mass. 92 , 95-96 (1873). However, because the judgment entered on January 12, 1978, did not reflect the fact of the mortgage foreclosure, the judgment is hereby vacated. The case is remanded to the Probate Court for the entry of a new judgment ordering that the surplus from the foreclosure sale and all interest accumulated thereon be used and distributed as follows: (a) for the payment of the balance, if any, which the court shall determine is due and payable by the plaintiff on account of the 1966 mortgage of $4,900 given by Syrjala to the bank on her property at 41 Robbins Avenue, in Abington, and (b) for the payment of the balance of such surplus funds to the plaintiff.
[Note 1] The plaintiff's husband, John D. Hill, and the North Abington Co-operative Bank were also named as defendants but they did not appear or file answers. The defendant Syrjala is the only party who appealed from the judgment in this case.