Gilson v. Nesson, 208 Mass. 368

Gilson v. Nesson

208 Mass. 368 | Mass. | 1911

Braley, J.

The finding for the plaintiff upon conflicting evidence disposes of the defense, that for a new consideration accepted by her and executed by the defendant the plaintiff’s *370intestate, who was the mortgagee, agreed to take the mortgaged property under foreclosure proceedings in satisfaction of the mortgage debt, and also establishes all material facts involved in the controversy upon which the right of the plaintiff to recover depended. American Malting Co. v. Souther Brewing Co. 194 Mass. 89.

The mortgagee purchased the property at the sale, and the defendant, having advanced the expenses of foreclosure^ is to be credited with the purchase price, and only the balance of the indebtedness can be recovered in the present action. The actual sale was for $10,000. But, as the deed and affidavit under the power of sale stated the consideration and the amount of the bid to have been $12,500, the defendant contends that this sum must be credited, and that the judge erred in refusing to rule that the affidavit could not be contradicted and must be taken as true. If as between the parties the actual consideration of the contract may be shown although the recital in the deed of conveyance is different, so the affidavit is not conclusive, but is for the preservation of evidence showing compliance with the conditions of the power of sale. It would be a novel proposition for the defendant to assert, that, if the sale had been for more than the amount named in the affidavit, he could not prove and be credited with the excess, or, if in fact a surplus had resulted, that the mortgagee would not have held the money to his use. The recitals being evidentiary only, do not work a mutual estoppel, and may be contradicted by either the mortgagor or the mortgagee. Rose v. Taunton, 119 Mass. 99, 100. Farquhar v. Farquhar, 194 Mass. 400, 405. Atkins v. Atkins, 195 Mass. 124, 127. Brouillard v. Stimpson, 201 Mass. 236, 238.

It is further urged that, by the acts of her agent at the sale and by taking and retaining title in connection with a formal declaration in writing, she acquired the property for a price which was the highest accepted bid, although the decisive bid was much less, the intestate, by whose acts and conduct the plaintiff would be concluded, was therefore estopped from taking a different position to the plaintiff’s disadvantage and injury, or elected to be bound by the amount stated in the affidavit or waived the right to rely on the final bid. A short answer to this contention would be, that, not having been pleaded, it *371is not open under the answer containing only a general denial, with averments of payment and of accord and satisfaction. Kidder v. United Order of Golden Gross, 192 Mass. 326. It, moreover, is doubtful whether it is open under the terms of the request. But, if we pass these objections, as the plaintiff does not suggest or rely on them, the necessary elements of an equitable estoppel do not appear. The evidence warranted a finding, notwithstanding his denial, that the defendant was represented at the sale by an agent who was instructed “ to bid in on the property as high as it could be bid to cover the mortgage.” If the bids of the respective agents were apparently simultaneous, and for the larger sum, the failure of the defendant’s agent, to whom the property was struck off, to comply with the terms of sale caused the auctioneer again to put the property up, when it was sold to the mortgagee at the price the plaintiff contends should be credited on the note. The sale seems to have been conducted in good faith, without any misrepresentations or concealment of material facts, and the defendant, being charged with the knowledge of his agent, could not have been misled as to the effect of what took place, or by the subsequent erroneous recital in the affidavit. Plymouth v. Wareham, 126 Mass. 475, 478. Stiff v. Ashton, 155 Mass. 130. DeFriest v. Bradley, 192 Mass. 346, 354.

Nor was there an estoppel by election. The recital, as we have said, was not contractual, or the affidavit essential to the efficacy of the deed, which under the power was a conveyance by the defendant to the mortgagee of the right of redemption and vested in her an absolute estate. Merrifield v. Parritt, 11 Cush. 590. Claflin v. Boston & Albany Railroad, 157 Mass. 489, 495. Hall v. Bliss, 118 Mass. 554, 559. It also was a question of fact, whether the mortgagee by stating the greater sum in the affidavit, because she thought it might aid her in making a future sale of the property at an enhanced valuation, intended to relinquish to the defendant in reduction of his collateral liability upon the note, the difference between the bids. Kent v. Warner, 12 Allen, 561. Boyden v. Hill, 198 Mass. 477.

Exceptions overruled.