Lipsohn v. Goldstein, 212 Mass. 144

212 Mass. 144 | Mass. | 1912

Braley, J.

The defendant Goldstein, when as mortgagee he attempted to execute the power of sale.upon default of the plaintiff, was bound to act in good faith, and to use every reasonable means to obtain the full value of the mortgaged personal property, and to protect the interests of the plaintiff who was mortgagor. Montague v. Dawes, 14 Allen, 369. Clark v. Simmons, 150 Mass. 357. The master was not directed to report the evidence, and, his findings of fact being final, it appears from the first report, and the supplemental report, which are to be read together, that the sale was advertised in a local newspaper published in the place of the plaintiff’s residence, who received notice of the time and place, and if the record is silent as to the terms of the power of sale, no question is raised that they were not followed. The plaintiff did not request an adjournment of the sale although there were few bidders,'and the master finds, that the price obtained was not disproportionate to the real value of the property. It is conceded that the notice contained no reference to the terms of payment, and the plaintiff, who up to the last moment endeavored to raise enough money to prevent the sale of his household goods, was unable to obtain the money. The power of sale, however, must be assumed to have been in the ordinary form, and the mortgagee could have sold, and arranged with the purchaser to give credit for the purchase money, and if the property had brought more than the sum secured by the mortgage he would have been answerable to the plaintiff for the surplus. Bailey v. Aetna Ins. Co. 10 Allen, 286. The plaintiff’s financial inability undoubtedly influenced the terms of sale, but if so, the master reports, that under the circumstances the requirement that the purchaser must pay cash was not unreasonable or insisted upon by the mortgagee in order to get the property at less than its value or to deprive the plaintiff of further opportunity to redeem. The purchaser, who is joined as a defendant, was present during the negotiations, and when the property was struck off the mortgagee furnished the money to pay for it. If the mortgagee had previously hindered the plaintiff from raising the money, or sought to prevent him from bidding, the vendee would not have been an innocent purchaser for value and without notice of his conduct, and the foreclosure would have been invalid. Gilson v. Nesson, 208 Mass. 368, 371. Wenz v. Pastene, 209 Mass. 359. But the master having found that the mortgagee did nothing to hinder or delay the plaintiff, who had a reasonable opportunity to raise the money, the sale cannot be vitiated on this ground. The price not having been grossly inadequate, and the mortgagee not being chargeable with bad faith, the plaintiff has failed to sustain the essential averments upon which he relied for relief, and the decrees of the Superior Court overruling the plaintiff’s exceptions to the supplemental report, and confirming the report, and the final decree dismissing the bill, should be affirmed. Fennyery v. Ransom, 170 Mass. 303, 306, 307, and cases cited.

Ordered accordingly.