Hunnewell v. Goodrich

57 Mass. 469 | Mass. | 1849

Fletcher, J.

The first question which arises is, whether the master could lawfully order the estate to be sold on the petition of Hyde; Hunnewell then having a conveyance of the equity of redemption, and Hughes, the insolvent, having no title to the estate. If the master had such power, it must be derived from St. 1838, c. 163, § 3. If the master could make such sale, then Hunnewell, who held the equity of redemption, would be deprived of the right which the law gives him to redeem the estate within three years by paying off the mortgage; that is, he would be deprived of the three years allowed by law to redeem.

If the third section of the statute of 1838 gives the master power to sell a mortgaged estate absolutely, when a third person other than the insolvent has the equity, then it must se held to repeal pro tanto by implication the law which allows the holder of the equity of redemption three years to redeem. Now, it is a settled principle, that a law shall not he held to be repealed by implication, but from stern necessity. If the two statutes can be so construed as to stand together they shall be so construed. But, in the present case, the third section evidently applies only to cases where the insolvent still owns the equity, which passes to his assignees by the assignment; and does not apply to a case like this, where the equity belongs to a third person other than the insolvent. The third section, therefore, may have its appropriate effect and operation, without affecting the general law giving a right to redeem in three years. Standing solely on the power given by the third section, the master would have no right to make an absolute sale, so as to affect the right of Hunnewell to redeem. But HunneweL voluntarily petitioned the master for a sale of the equity, the proceeds to be applied towards his debt, and that he might be allowed to prove for the balance. Now, in effect appealing from the order of the master, he petitions this court, praying that the assignees may be enjoined from proceeding to sell on the order of the master; that the sale may be made on his own application and the proceeds applied to his debt; that he may be allowed to prove for the balance; and that the court will make such other order and decree as equity and good conscience may require. He thus voluntarily submits himself and his interest in the matter to the equity jurisdiction of the court. This brings the case fully and clearly within the English cases, in which it is held, that if the holder of the equity applies to chancery he puts himself in the power of the court, and a sale of the equity may be ordered. It seems most equitable and reasonable, and for the interest of all parties, that the whole estate should be sold together, and that Hyde and Hunnewell should join with the assignees in making the conveyance.^*

* The following order was made by the court in this case : —

It is ordered, &c., that the order of the master, directing a sale of said estate, be amended so as to read as follows, to wit: —

Ordered, that the assignees of said George Hughes do and they are heiebj directed to sell the property and estate in the petition of George Hyde and also in the petition of Horatio H. Hunnewell, mentioned and described, at public auction, at such time and place, on or before the 1st day of December, 1849, as they may think most beneficial to the parties interested therein, first giving twenty days’ notice of such sale, by publishing, &c., and the said Hunnewell and Hyde are required and enjoined to join with said assignees in a conveyance of said estate, so as to convey all their respective rights to and interests therein: Also that the proceeds thereof be applied, in the first instance, to the extinguishment of said Hyde’s debt in his said petition mentioned, so far as necessary therefor; and that said Hyde may be allowed to prove, for such balance, if any, as may remain unpaid, and if a balance of said proceeds remain, after payment of the atnount of said Hyde’s claim, ordered, that such balance be applied to the payment and extinguishment of the debt in favor of said Hunnewell, the same being first to be proved and established, and that said Hunnewell be allowed to prove against said insolvent estate such balance, if any, of his said debt, as may remain unpaid. If any surplus remain of said proceeds, after making said payments, the same to be subject to such order in relation thereto as may hereafter be made.