Cranston v. Crane, 97 Mass. 459

Cranston v. Crane

97 Mass. 459 | Mass. | 1867

Wells, J.

Several objections are made to the sufficiency of the proceedings by which the power of sale, contained in the mortgage from the defendant to Irene G. Cranston, was executed by the mortgagee. To effect a valid sale under a power, all the directions of the power must be complied with.

The principal objection in this case is that the donee of the power executed the deed to the purchaser by her own signature and seal. When the power merely authorizes the donee to execute a deed in the name of the donor, or as his attorney, it must be so executed; and the deed of sale will then be the deed of the donor of the power and not of the donee. But a power *464may be given to be executed by the deed of the donee, as well as it may by his will. This was formerly the more common mode. 1 Sugden on Powers, (7th ed.) 286. When such is the case, the deed of sale not only may, but must, be executed under the hand and seal of the donee of the power. If the power be given in the alternative, as is often the case, the deed of sale may be executed in either form. In the present case the power is “ to make, execute and deliver to the purchaser or purchasers thereof all necessary conveyances for the purpose of vesting in such purchaser or purchasers the premises so sold in fee simple absolute.” This is not a mere power of attorney to execute a deed in the name of the mortgagor; though the deed might not perhaps have been invalid if it had been executed in that manner; but it is a full power of sale and conveyance, which may properly be executed, as it was in this case, by the deed of the mortgagee, reciting the power, and signed and sealed with her own name and proper seal. No share in the authority to be exercised, and no interest in the estate, under such a mortgage and power, vests in the husband. She does not require his signature nor his assent to enable her to execute the power or to part with her rights under the mortgage. It is not her real property that is conveyed. Heath v. Withington, 6 Cush. 497. 4 Kent Com. (6th ed.) 325. The entry authorized by the power is for the purpose of the sale only, and to enable the sale to be made upon the premises, as is required by the terms of the power. It is not necessary that such entry should precede the giving of the notices of sale ; nor that it should be formally made at any other time or in any other manner than at the time of the sale and for the purposes of the sale.

As the sale is required to be by public auction upon the premises, there is not the same degree of personal confidence implied, in regard to the conduct of the proceedings, as might otherwise be the case. We are of opinion that the giving of the notices, the entry upon the land, and the conduct of the auction were all matters -which the mortgagee might properly employ others to do, under her direction; and that it did not require authority under seal for these purposes.

*465The remaining question is whether the tender of the amount due and payable upon the mortgage operated to defeat the right to sell under the power, so that the purchaser could take no title. If made at the time stipulated in the condition of the mortgage, it would certainly have that effect, because no right to sell could arise until after a breach, and an attempt to sell would be a mere nullity. But upon a breach of condition the right to sell attached at once; and, as it was a power coupled with an interest, it could not be revoked. Redemption after breach is an equitable right. No remedy is given at law. If a tender be made and not accepted, the mortgagor “ may recover the premises by a suit in equity for redemption.” Gen. Sts. c. 140, § 16. This applies to a tender made “ before as well as after an entry for breach of the condition.” The tender is merely the foundation for the equitable remedy. If not accepted, it has no effect upon the legal estate. It does not prevent nor delay foreclosure, unless a suit to redeem is brought within a year afterwards. Gen. Sts. c. 140, § 17. The effect of the breach is not removed by a tender alone, but by the suit in equity to redeem which follows such tender. The sale under the power, therefore, so far as it operated to transfer the legal title and possession, could not be defeated by the tender. If the mortgagor take the precaution to charge the purchaser with notice of the tender, he may preserve his right to redeem against him. But it is still only a right to redeem, and that an equitable right merely, to be enforced as authorized by statute, by a suit in equity. Unless and until he can obtain a decree in a court of equity, restoring him to the legal right of possession which he has forfeited, he can neither maintain nor defend a writ of entry against any one claiming under the mortgage. In some cases the court will relieve against the forfeiture of an estate, in a suit at law to enforce the forfeiture after breach, by ordering a stay of proceedings upon full performance. The conditional judgment in an action to foreclose a mortgage is of this nature; though it is now secured to the party by statute. But, when the parties have provided another mode by which a foreclosure may be effected without the necessity of such a suit, no such relief can ba *466afforded. The foreclosure is made complete by the sale. The purchaser brings his writ of entry, not to enforce the forfeiture, for he has taken no conditional estate, butupon his absolute title acquired from and after the foreclosure.

The court are all of opinion that this defence cannot be maintained at law. The judgment for the defendant rendered in the superior court must therefore be set aside. The demandant being entitled to judgment for possession, the case must go to an assessor for the determination of the amount of rents and profits, in accordance with the agreement of the parties.