290 Mass. 482 | Mass. | 1935
This is an action against the defendant as the executrix of the will of her deceased husband, who was an indorser of a note for $10,000 secured by a second mortgage of real estate, to recover a deficiency after a foreclosure sale. The note was actually owned by one Pinanski and one Green who assigned it to the plaintiff for the purpose of bringing this action. The defendant’s testa
At a foreclosure sale on July 18, 1930, the property was sold for $9,325, subject to a first mortgage of $35,000 and unpaid taxes, to Goldfine and Carmen, the owners of a two-thirds interest in the equity. They, however, refused to go through with the sale and forfeited a deposit of $500 which has here been credited in determining the amount now due on the note. Thereafter the property was again advertised for sale at foreclosure, the auction was held on August 29, 1930, and the property sold for $5,000 subject to the first mortgage of $35,000 and unpaid taxes. The purchasers were Pinanski and Green, the real owners of the note and mortgage. The foreclosure deed to a straw holder representing them was delivered on September- 8, 1930, and on September 16, 1930, he, representing the purchasers, entered into an agreement with one Levine to sell him the property for $10,000 subject to the first mortgage and to adjustments for taxes and insurance. On December 17, 1930, a conveyance was made to him with adjustments computed as of that date.
At the trial the defendant admitted that both foreclosure sales were duly advertised, that she knew in advance that they were to be held, that the note was overdue at the time of the foreclosures and that taxes, water rates and interest were due and unpaid. The bill of exceptions states that at the trial the “defendant waived all defences to the suit except the defence based upon the conduct of the actual owners of the note in connection with the foreclosure of the property on August 29, 1930,” and that “The defence was based entirely upon the claim that the pertinent evidence established want of good faith and negligence on the part of the owners of the note.”
The defendant in her answer pleaded in defence to the action that the foreclosure sale was not properly con
As to what took place at the time of the second foreclosure sale there was testimony from the auctioneer, from Green, one of the owners of the note, and from an attorney representing the owners, all of these witnesses having been • called by the plaintiff. The auctioneer testified that the sale was protracted by delays after bids were made, while two groups of bidders conferred together privately, that this seemed "unusual” and that the witness did not know "what it was about, it was ridiculous.” If we should assume that on his testimony and justifiable inferences therefrom it might have been found that the sale was improperly conducted to the prejudice of the rights of the defendant, still the judge was not obliged to make that finding. The plaintiff, although he called the auctioneer as a witness, was not bound by his testimony. Hill v. West End Street Railway, 158 Mass. 458. Marsh v. Beraldi, 260 Mass. 225, 230. The judge might not have believed it. If the judge accepted as true testimony given by the attorney of the owners of the note, he had warrant for finding that the delays and the conferences between bidders resulted from the attempt to get higher bids and that every effort was made to sell the property at the highest bid then and there obtainable. In respect to what happened at the time of the sale there is nothing in the agreed facts or in the testimony of Green which required the finding that the sale was not properly conducted.
The defendant further contends that there were facts other than the actual occurrences at the foreclosure sale which required a finding that the owners of the note failed to
The inadequacy of the price for which the property was purchased by. the mortgagees at the foreclosure sale, as indicated by the sum for which it was shortly thereafter resold, would not, by itself, warrant a finding of bad faith on the part of the mortgagees. Johnston v. Cassidy, 279 Mass. 593, 597, and cases cited. The judge was not bound to find that the resale was made pursuant to an agreement or understanding existing at the time of the foreclosure sale. The mere fact of Levine’s earlier expressed interest in the
The first request of the defendant for the ruling that the plaintiff was not entitled to recover and the eighth and thirteenth requests for rulings that the foreclosure sale was not properly conducted and that the mortgagees did not exercise good faith and reasonable diligence to protect the interests of the defendant were properly denied. There was no error in the refusal of requests numbered 16, 17 and 18.which merely purport to state facts or inferences of fact, and include statements which the judge was not obliged to find as facts or inferences which he was not obliged to draw.
The defendant has argued exceptions to the denial of certain of her requests which do not purport to include questions of law but recite with some deviations in form facts agreed upon at the trial. From notations made by the trial judge on the defendant’s “requests for rulings and findings” it seems clear that he denied them on the ground that he was not obliged to grant requests for findings of fact. In this we see no error. Smith v. Import Drug Co. 253 Mass. 368, 371, and cases cited. O’Neill v. County of Worcester, 210 Mass. 374, 377. We do not think, as the defendant contends, that it can be inferred from the denial of these requests that the judge refused to consider or accept as conclusive the facts which had been agreed upon by the
Exceptions overruled. .