277 Mass. 8 | Mass. | 1931
This is a suit in equity for an accounting of the proceeds of the sale by foreclosure of a mortgage on real estate. The plaintiff was the holder of a fourth mortgage
There is nothing in the plaintiff’s contention, based on Equity Rule 6 (1926), to the effect that the answer of the defendants bound them to the proposition that the bid was $2,200 above the first and second mortgages and prevented them from showing by evidence what in truth took place at the auction sale. The answer was broad enough to permit proof of such facts as were found by the trial judge.
The plaintiff has argued at length that these findings of fact are not warranted by .the evidence. It is. not necessary to recite, or to summarize, or to analyze the evidence. It was largely oral, given by witnesses testifying in the presence of the trial judge. It has been examined in the light of the familiar and controlling principle of law that an appeal from a.decree in equity with a full report of the evidence brings before this court questions of fact as well as questions of law, and that this court must examine the evidence and decide the case according to its own judgment, giving due weight to the findings of the judge, and that, where the case has been tried on oral testimony, the decision of the trial judge will not be reversed unless plainly wrong.. In the light of that principle it is clear that there is no sufficient reason for doubting the soundness of the findings of fact made. They are adopted as true. .
No discussion is required to show that, under our earlier decisions touching the foreclosure of mortgages, the ruling of the judge upon the facts found was right. O’Connell v. Kelly, 114 Mass. 97. Alden v. Wilkins, 117 Mass. 216.
Procedure as to foreclosure of mortgages was at the time of the transactions here in issue, and is now, governed by G. L. c. 244, § 14. That section is a substantial reenactment, with only perfecting verbal changes, of St. 1918, c. 257, § 439, which did not become effective until the enactment of the General Laws (St. 1919, c. 5; St. 1920, c. 2), and which in turn first appears as § 463, at pages 180-182, in Vol. II of the Preliminary Report of the Commissioners to Consolidate and Arrange the General Laws (under chapter 43 of the Resolves of 1916). In a note appended to said § 463 the commissioners state, among other matters, in substance that the method of foreclosure by exercise of the power of sale in mortgages of real estate is inadequately set forth in the then existing statute, and that confusion and uncertainty have resulted, and that the proposed section “is suggested for the purpose of making definite the statute law as affected by the' decided cases, incidentally settling some disputed points, and clearly indicating an exact method of procedure. It furnishes a standard form of notice of the sale and establishes the effect of a deed given thereunder, and is believed to be in the interest of uniformity, brevity and clearness.” The provisions of G. L. c. 244, § 14, after regulating the publication of the notice of foreclosure and the form of such notice, declare the effect of a sale held pursuant to such notice in these words: “the premises shall be deemed to have’been sold, and the deed thereunder shall convey the premises, subject to and with the benefit of all restrictions, easements, improvements, outstanding tax titles, municipal or other public taxes, assessments, liens or claims in the nature of liens, and existing encumbrances of record created prior to the mortgage, whether or not reference to such restrictions, easements, improvements, liens or encumbrances is made in
This mandate of the statute ought not to be made an instrument of injustice. If its terms are not followed, or the sale is not conducted in good faith, the mortgagor or those standing in his shoes may have the sale set aside in equity. Bon v. Graves, 216 Mass. 440. Russell v. Bon, 221 Mass. 370. If, however, the mortgagor (including those, standing in his shoes) seeks to recover a surplus alleged to have been received by the sale, he affirms the sale notwithstanding irregularities. Alden v. Wilkins, 117 Mass. 216. In such case, if by mistake or ignorance the mortgagee has failed in some particular to conform exactly to the statute to his own harm, it would be inequitable to hold him responsible to account for money or assets which he has in truth and fact never received, provided no party in interest has been misled or suffered injury. This doctrine was applied in Chute v. Cronin, 273 Mass. 471. That
In a case of this nature oral evidence to explain or modify the statement in the instruments of foreclosure touching the amount bid at the sale and the payment for the deed was admissible in the circumstances. The rule that written instruments cannot be varied. ,by paroi is not thereby infringed. The recitals in the deed and in the affidavit as to the amount bid at the sale and paid as consideration for the deed are evidentiary only, do not work a mutual estoppel, and may be contradicted by any party thereto. It was competent for the mortgagee in the case at bar to prove that those recitals did not state the truth. Gilson v. Nesson, 208 Mass. 368, 370. Way v. Greer, 196 Mass. 237, 245, and cases cited. Lait v. Sears, 226 Mass. 119, 125. Ely v. Wolcott, 4 Allen, 506.
It remains to examine two cases upon which the plaintiff chiefly relies. The first of these is Feuer v. Capilowich, 242 Mass. 560. In that case the advertisement of foreclosure of the junior mortgage stated expressly that the premises were subject to a first mortgage for $4,000, and that the “premises will be conveyed, subject to all mortgages of record . . . and any and all encumbrances which have priority over”
The second case upon which the plaintiff relies is Antonellis v. Weinstein, 258 Mass. 323. In that case the
The result'is that the order is
Decree affirmed with costs.