189 Mass. 559 | Mass. | 1905
This is a bill in equity to redeem a mortgage. On August 25, 1898, the mortgage was foreclosed by a sale under a power therein contained. The bill was filed on September 3, 1901. The case was referred to a master whose report shows that there was a breach of the condition of the mortgage, continuing at the time of the foreclosure, and that all the proceedings were regular, except that, in addition to the land then subject to the mortgage, the notice of the sale and the sale itself included a certain lot of land described in the mortgage, in an undivided third part of which the plaintiff had conveyed his right of redemption to the mortgagee, by a quitclaim
Unless the plaintiff has an absolute right to redeem by virtue of his title, the facts above recited show such gross laches as deprives him of all standing in a court of equity. Indeed, they fall little short of a distinct and affirmative ratification of the foreclosure sale.
The plaintiff’s contention is that, because the notice, and the sale itself, included in the description property which was not covered by the mortgage, the sale was not merely voidable but utterly void. He invokes the doctrine stated in Moore v. Dick, 187 Mass. 207, that in such a case there is no question in regard to laches, and the conditions are the same as if there had been no attempt to foreclose. Under such conditions, no period of time less than twenty years will bar the right of redemption. We are therefore brought to the question whether the irregularity in the notice and sale made the sale void, or only voidable.
The distinction between the two classes of cases has not been very clearly defined, and the decisions in the different jurisdictions do not entirely agree. It has repeatedly been said that, in order to make a valid sale under a power in a mortgage, the terms of the power must be strictly complied with. Roarty v. Mitchell, 7 Gray, 243. Smith v. Provin, 4 Allen, 516. Bigler v. Waller, 14 Wall. 297. Shillaber v. Robinson, 97 U. S. 68. Where the sale is to foreclose a mortgage for a breach of the condition, there is no authority to sell unless there is a breach, and an attempted sale would be without effect upon the right of redemption. So, where a certain notice is prescribed, a sale without any notice, or upon a notice lacking the essential requirements of the written power, would be void as a proceeding for foreclosure. Moore v. Dick, 187 Mass. 207. But if everything is done upon which jurisdiction and authority to make a sale depend, irregularities in the manner of doing it, or in the subsequent proceedings, which may affect injuriously the rights of the mortgagor, do not necessarily render the sale a nullity.
Most of the cases on this subject, found in our reports, are suits brought to set aside sales as voidable. Dyer v. Shurtleff, 112 Mass. 165. Burns v. Thayer, 115 Mass. 89. Learned v. Foster, 117 Mass. 365. Colcord v. Bettinson, 131 Mass. 233. Pryor v. Baker, 133 Mass. 459. Bancroft v. Sawin, 143 Mass. 144. Streeter v. Ilsley, 151 Mass. 291. Fennyery v. Ransom, 170 Mass. 303. Doane v. Preston, 183 Mass. 569. Tetrault v. Fournier, 187 Mass. 58. Whether a sale under a notice which includes, as a part of the property, land not covered by the mortgage, is voidable or void, is a question upon which there may be a difference of opinion. Something may depend upon the kind and value of the property erroneously included. In Minnesota such a sale is held to be merely voidable. Willard v. Finnegan, 42 Minn. 476. Ryder v. Hulett, 44 Minn. 353. The same conclusion has been reached in a federal court. Swenson v. Halberg, 1 Fed. Rep. 444. See also 2 Jones, Mortgages, (4th ed.) § 1857. The case of People’s Savings Bank v. Wunderlich, 178 Mass. 453, was' a bill in equity to set aside such a sale, and it was held that the sale was invalid. But it was not said that the sale was void, as distinguished from voidable. Indeed, the last paragraph of the opinion, and especially the last sentence, intimates that the decision rests in part upon the fact that no new rights had intervened, and that the plaintiff had no such absolute right of redemption after the sale as would relieve him from the defence of laches if new rights had been acquired by others.
The notice in the present case included all the land covered by the mortgage, and complied literally with the terms of the power. The sale was of all the land. The only objection to the proceedings is that something more was included, and that this might mislead those contemplating a purchase, and affect the sale injuriously. The ground of objection is not that the notice and sale did not comply with the power, so far as to cover everything required; but that they complied in an irregular way which might be harmful to the plaintiff. Of course the sale gave no title to the land not then covered by the mortgage, and the plain
Decree affirmed.