Fennyery v. Ransom, 170 Mass. 303

Fennyery v. Ransom

170 Mass. 303 | Mass. | 1898

Morton, J.

Even if the bill had been seasonably filed, it is doubtful whether, upon the facts found by the master, the mortgagor or her heirs or grantees would have been entitled to redeem. It is well settled that a foreclosure sale will not be set aside because the property was sold for less than it was worth, *307or because there were no bidders present except the mortgagee and persons who were present in his interest, or because the property was struck off to some one for him and was afterwardsconveyed to him, or because notice of the sale was not given to the mortgagor if the mortgage did not require it, or because the sale was not adjourned and more effort made to procure the attendance of bidders so as to prevent a sacrifice, it not being alleged that an adjournment would have resulted in a higher price being realized. Austin v. Hatch, 159 Mass. 199. Marcus v. Collamore, 168 Mass. 56. Learned v. Green, 139 Mass. 31. Dyer v. Shurtleff, 112 Mass. 165.

The mortgagee is bound to observe the requirements of the mortgage, and to conduct the sale with entire good faith, and to use reasonable efforts to protect the interests of the mortgagor. Stevenson v. Dana, 166 Mass. 163. But the fact that the sale may have been a hard one for the mortgagor is not ground for setting it aside.

It is not necessary, however, to pass upon the question of the validity of the sale, since we are of opinion that, if the sale could have been avoided, the mortgagor and those claiming under her have been guilty of such laches that it would be unreasonable and unjust to permit them to avoid it now. The sale took place on August 4,1879. Mrs. Fennyery knew of it when it occurred. She took no steps to impeach its validity. If she desired to have the sale set aside on account of any alleged irregularities, she should have brought her bill within a reasonable time after the sale took place. The bill in this case was not filed till March, 1896. A delay of between sixteen and seventeen years is altogether inexcusable, especially when unaccompanied by any circumstances tending to explain it. Learned v. Foster, 117 Mass. 366.

The fact that the bill is brought by the heirs at law and devisees of Mrs. Fennyery does not help the matter. They can stand in no better position than she would have stood in. The circumstances attending the settlement of the suit in 1882 tend strongly to show that she acquiesced in the sale. If the effect of the judgment recovered by the mortgagee in 1882 was to open the foreclosure, we think that it must be because of Pub. Sts. c. 181, § 42, and for no other reason, and that by that statute the *308right to redeem was extended only one year from the recovery of the judgment, which expired long since. The suit was brought to recover a balance due after crediting to the mortgage debt the proceeds of the foreclosure sale, and we discover no other ground on which it could be held that the judgment had opened the foreclosure.

Decree affirmed.