Dennett v. Codman

168 Mass. 428 | Mass. | 1897

Knowlton, J.

The plaintiffs abandoned their counts for slander of title, and left the case to stand on their allegations of conspiracy to deprive them of a parcel of land, and fraudulently to foreclose a mortgage upon it. There is no evidence that the defendants, or either of them, did anything that they had not a right to do, or that they resorted to any illegal means to do anything, unless it be in the foreclosure of the mortgage under the power of sale.

If we assume in favor of the plaintiffs that the jury might have found such negligence or misconduct on the part of the defendants in making the sale as would render the sale invalid, it does not appear that the plaintiffs have suffered from it. They saw fit to bring a bill to redeem the land from the mortgage, as they might have done if no sale had been made, and they offered in it to pay the defendants, what should be found due on the mortgage. In this bill they sought a remedy for the alleged wrong that had been done them in the proceedings to foreclose, by asking for a decree which should set aside the sale. They obtained the relief which they sought, through a decree which left their rights as if no sale had ever been made. They were dissatisfied with the decree, and appealed therefrom on the ground that it required them to redeem within a time stated, namely, within forty-five days from the entry of the decree, when, as they contended, it should have permitted redemption “at any time before a valid and effectual foreclosure of said mortgage by a new execution of the power of sale therein, or otherwise.” But this court overruled their contention and affirmed the decree. Dennett v. Codman, 158 Mass. 371. After the decision on the appeal, they still had forty-five days within which to redeem the property, but they failed to redeem it at any time. The remedy which they obtained on their bill in equity was full and adequate. Their right of redemption was defined by the court, as is usual in such cases, and they were left without injury from the foreclosure of which they complained. They lost their land, not by reason of the foreclosure, but because of their failure to redeem it within the time allowed them by the court. Having elected their remedy, and having obtained full satisfaction, which failed to be beneficial to them only through their misfortune or neglect, there is nothing left upon which they can found a claim for damages. The ruling directing a verdict for the defendants was correct.

In the view which we take of the case, the memorandum of the justice who heard the parties in equity was immaterial.

_'Exceptions overruled.