Dexter v. Shepard

| Mass. | May 7, 1875

Ames, J.

The notice of the time' and place of sale was given in exact conformity to the terms of the power. There is nothing in the mortgage that requires the first advertisement to be published three weeks before the time appointed for the sale, This point is fully disposed of by the.decision in Frothingham v March, 1 Mass. 247" court="Mass." date_filed="1804-11-15" href="https://app.midpage.ai/document/frothingham-v-march-6402805?utm_source=webapp" opinion_id="6402805">1 Mass. 247.

It is equally well settled that a mortgagee has a right, in the exercise of a reasonable discretion, to adjourn the sale from time to time. He is acting not only in his own right, but also as the attorney or agent of the mortgagor; and although the immediate occasion and purpose of the sale is to enforce the payment of the debt due to himself, he is in fact a trustee for the benefit of all parties in interest. In that fiduciary relation, it is his duty to get the best price for the property that he can, and to take all proper and reasonable precautions that it shall bring its full value. If in the exercise of a sound discretion, and acting in good faith, he finds it expedient to adjourn the sale, he has a right to do so. Hosmer v. Sargent, 8 Allen, 97. Richards v. Holmes, 18 How. 143. The report shows that it was a reasonable and proper thing to do, in order to prevent the property from being sacrificed, and at the same time to prevent the loss of the labor and expense already incurred in giving the notice.

The notice of the adjournment was sufficient. It was not necessary that' it should be as minute and specific as the original advertisement. A sale regularly adjourned is, when made, in effect the sale of which previous notice had been given. Richards v. Holmes, supra. The notice given could not have misled any one, and had the effect to increase the attendance at the sale.

The objection that the mortgagee had no right indirectly ¡to be the purchaser would be of no avail against persons who have subsequently purchased of him in good faith, upon adequate consideration and without notice. Burns v. Thayer, 115 Mass. 89" court="Mass." date_filed="1874-04-09" href="https://app.midpage.ai/document/burns-v-thayer-6417662?utm_source=webapp" opinion_id="6417662">115 Mass. 89. Montague v. Dawes, 12 Allen, 397. Several of the defendants, namely, Hines, Prentiss, Hutchins and Tibbetts, stood in that position before any attempt was made by Dexter to avoid the sale. As to these defendants, and also as to Charles A. Shepard, who retains no interest in the estate or in its proceeds, the bill clearly cannot be maintained.

But by the terms of the power the mortgagee is expressly authorized to be the purchaser at the sale. As it would be impossible for him to be both grantor and grantee in the deed to be given at such sale, the only mode in which he could himself be the purchaser would be by the intervention of some third person as the nominal purchaser and grantee. In proceeding in this manner, he would be held to the strictest good faith and the utmost diligence for the protection of the rights of the debtor. Montague v. Dawes, 14 Allen, 369. It is a transaction which the law would watch with jealousy; but nothing is disclosed in this report that indicates any want of good faith on his part, or any violation of the mortgagor’s rights.

The arrangements made by the plaintiff that each lot should be struck off at. a sum not less than the amount of the mortgage and the incidental expenses, were not intended, and could have no tendency to prevent competition at the sale, or to depreciate the price. It is no injury to the mortgagor to have it made certain that the sale will at least pay the whole of the mortgage debt, and at the same time not impair the chances that there will be a surplus for his benefit.

For these reasons, we are of opinon that the power of sale was properly executed, and the Decrees are affirmed.