258 Mass. 323 | Mass. | 1927
The plaintiffs, Antonellis and Shaneck, each in a separate action, recovered a judgment against the defendant Eva Weinstein, and before February 6, 1926, levied executions, issued in said actions upon a parcel of land
On January 7, 1926, Kelly, by a publication in the newspaper, advertised the land for sale on February 6, 1926, for the purpose of foreclosing the third mortgage for breach of its conditions. The notice of sale set forth that the land was “subject to a first mortgage of $4,000.00 held by the Eliot Savings Bank, dated November 6, 1922, . . . and subject to a second mortgage of about $4,100 at present, and subject also to taxes for 1925 .... Other terms to be announced at the sale.” The defendants knew that executions had issued on the judgments obtained respectively in the above named actions about January 1, 1926, and that the property was subject to the levies made thereon.
At the time and place of sale the auctioneer, at the direction of counsel for Shapiro, the mortgagee, and in his presence, announced that there was a first mortgage of $4,000 on the property, and a second mortgage of $4,063, and interest of $36 due on the third mortgage; that $55 had been paid on the principal of the second mortgage, and $19 insurance and costs; “that the bids were to include these figures, but that there were unpaid taxes which amounted to about $237 and interest on the first mortgage amounting to $80 which the purchase price or the sale price did not include.” He then called for bids. The first was that of Shapiro, and was either $8,700 or $8,750. Other bids were made by Shapiro and Kelly, and there was one by a third person whose name was not known to the auctioneer; finally Shapiro bid $9,050. As he was the highest bidder the property was sold to him. The amount due on the third mortgage held by Shapiro was $750 and $36 interest thereon. There was evidence that the auctioneer’s commission on the sale would be over $300.
The trial judge found that the auctioneer at the sale an
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. He could legally sell only his interest as mortgagee and the interest of the mortgagor under the power. The recital in the notice, “Other terms to be announced at the sale,” did not authorize a sale which included the first and second mortgages, nor upon terms in violation of law.
The evidence offered by the defendant that he intended to include the first and second mortgages when he made his bid of $9,050 was not admissible. It had no bearing upon the rights of the parties as disclosed by the record. As was said in Feuer v. Capilowich, 242 Mass. 560, at page 565, “It must be assumed as a matter of law that the mortgagee intended to sell the interest of the mortgagor and his own interest in the property under the power; and he is estopped to claim any other understanding or intent of his own act in exercising the power and in becoming a purchaser at the sale, which was had in his presence and under his immediate supervision.” See also Fowle v. Merrill, 10 Allen, 350; Torrey v. Cook, 116 Mass. 163; Donohue v. Chase, 130 Mass. 137.
The notice of sale for the foreclosure of mortgages, pre
The question, whether the plaintiffs could join in a single bill to obtain the relief sought, was not argued by the defendant and need not be considered.
Decree affirmed.