Hoffman v. Anthony Others

| R.I. | Sep 6, 1859

The plaintiff in this bill claims the right to redeem the premises described therein from the mortgage execution by James Reynolds and Thomas Parker, on the 13th day of December, 1852, to Henry Blundell, which mortgage, the bill charges, came to the defendant, Thomas E. Anthony, by various mesne assignments, and that the said mortgage is still a subsisting mortgage upon the estates. The bill, anticipating the defence to be set up to his claim for redemption, that the mortgage had been foreclosed by sale under the power contained in the mortgage, and to show that the power had not been executed, at least so executed as legally to vest the estate in the purchaser to whom it was struck off at the auction sale, sets out, among other grounds of objection to the validity of the sale made by the said Anthony, the assignee of the mortgage, that the advertisement, caused to be published by the said Anthony in the public newspaper, is not signed, and does not contain the name of any party connected with the mortgage; and charges, that the reference in said notice to the place where said mortgage is recorded, is not correct, the mortgage not being there recorded. The answer admits that this was the notice given, and that it was erroneous in the particulars charged; that although it stated that the mortgage was recorded at page 25 of Book No. 27, in Cranston, it was not there recorded, but was recorded on page 325 of that book. Now the plaintiff claims that such a notice as here appears to have been given, is not sufficient to warrant a sale; that it is not a fair compliance with the condition imposed upon the power of sale, to give thirty days' public notice.

The power in this case was by the mortgagor vested in the mortgagee, if the mortgagor should make default in payment at the times appointed, to sell the estate, or so much as might be necessary to discharge the debt upon condition, but that he should give public notice of such sale for thirty days. This power is annexed to the estate of the mortgagee; and every assignee, by virtue of the assignment to him thereof, is clothed with this power, and upon the like condition of notice. The mortgagee, so long as he held the estate in mortgage, and every successive assignee while he held it, became a trustee, therefore, with a power to sell and appropriate to himself so much only as might be necessary to discharge the debt due from the mortgagor. He was to sell no more than might be reasonably necessary to discharge the debt. If he sold more from any necessity, he was to hold the balance above the mortgage debt for the mortgagor, and if any assets remained unsold, it remained to the mortgagor.

The mortgagor did not require and had not provided, that before making sale of the estate or any part thereof, any notice should be given to him of such intended sale. The only notice provided for was that by advertisement in a public newspaper, and which was intended to invite purchasers. This was its great and only purpose; and as the mortgagor had provided no notice to himself upon which he could give a wider circulation to the advertisement, was of the utmost importance to him. He had a deep interest in having such notice given as would be likely to attract purchasers who would be willing to give a fair price for the estate. This being the purpose of the notice, it imposed a duty upon the assignee to see that the notice was given, such as would reasonably accomplish the end designed. This duty is expressed by the Chancellor in the case of Matthie v.Edwards, 33 Eng. Chan. R. 465, in reference to a notice under a like power, in this language: "A mortgagee having a power of sale cannot, as between himself and the mortgagor, exercise it in a manner merely arbitrary, but is bound to exercise some discretion not to throw away the property, but to act in a business-like manner with a view to obtain as large a price as may fairly and reasonably, with due diligence and attention, be under the circumstances attainable."

The same view, as to the duty of the mortgagee in giving notice, is expressed in Burnet v. Deniston, 5 Johns. Ch. 35" court="None" date_filed="1821-01-01" href="https://app.midpage.ai/document/burnet-v-denniston-5550437?utm_source=webapp" opinion_id="5550437">5 Johns. Ch. 35;Longworth v. Butler, 3 Ill. 32" court="Ill." date_filed="1839-12-15" href="https://app.midpage.ai/document/warren-v-mchatton-6946031?utm_source=webapp" opinion_id="6946031">3 Ill. 32. This duty, as it seems to us, is not performed by the notice published in the present case. The advertisement professes to give notice that at a certain time and place these lots of land, which are sufficiently described to inform purchasers what is proposed to be sold, will be sold by somebody under a certain power which may be found in the records of Cranston, in a certain place there. This reference to the records is the only source pointed out by the notice of any information as to the terms of the power, or of the conditions upon which it might be exercised; and when an inquirer goes there, no such record and no such information is to be found. Whether there is any such power he has no means to ascertain. It is not even stated who made the mortgage or to whom it was made. Had this been stated, he might have found the deed somewhere on the records; but without it, he is only to search for a mortgage of lots 117, c. made by somebody. The record in fact utterly fails to furnish him with any information. He proposes to inquire of the person who advertises the sale. But who is he? The notice does not state this. He cannot inquire of the mortgagor or of the mortgagee, for he has no notice who they are. As a last resort it might occur to him to inquire of the auctioneer, but on looking at the advertisement he finds that it is not disclosed who is to conduct the auction sale. All that he can know is, that certain lots of land, which he can view, are proposed to be sold by somebody, not named, under a power from some other person, not named. Whether there exists any such power, or whether the contingency has arisen upon which it is to be exercised, or what the contingency is, he cannot know from any source of information given him. He has no means to form an opinion even whether anything could be sold, and whether it would be worth his while to attend at the time and place notified. Few purchasers, probably, would think it was. Being pointed to the records for the terms of the power, they should have the means of examining, as they would desire to do, before bidding.

It is no matter of wonder that with such a notice as this no other persons attended this sale, as the evidence shows they did not, than such as derived their information from other sources than this advertisement, — none but such as were specially invited to attend, viz: the auctioneer, the holder of the mortgage, one of the original mortgagors having then no title, and one other person specially requested to bid for the defendant Rebecca Anthony. Nor is it strange that the estate should, under the circumstances, have been struck off for one third of its fair value. Such a notice would be likely to produce such a result, or at least was not adapted to produce any other. In giving such notice it cannot with propriety be said that the assignee, in the exercise of the power and trust with which he was clothed, acted in a business-like manner with a view to obtain as large a price as might reasonably be obtained under the circumstances with due diligence and attention on his part, or in common fairness towards his cestui que trust.

It must be declared that the plaintiff is in this case entitled to redeem, that the said mortgage is not foreclosed, and the case must be referred to a master to ascertain the amount due upon the mortgage.