170 Mass. 120 | Mass. | 1898
This case was tried in the Superior Court, and is here on report. It was a bill in equity brought to redeem land from a mortgage. The defendant Richards pleaded a foreclosure, and there was a general replication. The first question of any importance raised at the hearing is whether on these pleadings evidence was admissible that the foreclosure was fraudulent. As the replication was in the form required by Rule 15, we assume this to mean a question whether the evidence was admissible without amending the bill. The defendant relies on the principle that the court will not go into charges of fraud unless they are specific, and no doubt the principle is correct where fraud is set up as a ground of relief. But if an amendment were necessary, undoubtedly it would be allowed, as the defendant did not suggest surprise or ask for delay or for a specification of the particulars of fraud relied on, bpt went on and offered his evidence of good faith, and manifestly is insisting on the objection solely in the hope of gaining by what under the circumstances is a technicality. But further, by the rule obtaining in this Commonwealth, if the foreclosure was fraudulent, the plaintiff did not need to come into court for relief, but could avoid the effect of the fraudulent act by his own election in pais. Bassett v. Brown, 100 Mass. 355. Billings v. Mann, 156 Mass. 203, 204. This being so, it is a question which need not be decided whether he was not at liberty to manifest his election by filing a bill to redeem, ignoring the alleged foreclosure, and, if the defendant pleaded it, to rely upon his general denial in the replication. This bill seeks no relief against the foreclosure, but proceeds on the footing that it has been avoided ab initio.
It is argued that, if the question of fraud is open, the evidence discloses none. The justice who heard and saw the witnesses found that the plaintiff had made out his case, so that the only question for us is whether the desiccated leaves of the report clearly show that he was wrong. The principal of the debt was not due, and the default for which the foreclosure was attempted was in payment of six months’ interest, which, according to the plaintiff’s testimony, his cestui que trust and agent, who had paid it on former occasions, made not less than nine attempts to pay without being able to find the defendant’s lawyer in his office. The sale was advertised on the month when the interest fell due, and no notice was given of the fact to the plaintiff, although it is only fair to say that a reputable witness for the defendant testified that the plaintiff had expressed indifference on the matter, and although the defendant perhaps did not know of the interest of the cestui que trust. In the notice the premises were stated to be subject to large mortgages, which in fact had been paid off and released by deeds recorded in the registry. The place of the sale was on the premises at Nantasket Beach; the time, November 12, at four o’clock in the afternoon. That is to say, it was toward dusk on a deserted beach. There would seem to have been no public conveyance to the premises. No notice of the sale was put up there. Naturally, under these circumstances, an agent of the mortgagee was the only bidder, and, according to the plaintiff’s evidence, he bid an inadequate price. Assuming without deciding that the grave mistake in the notice did not make the sale void, in the sense that it went for nothing unless affirmed by the parties interested, (Donohue v. Chase, 130 Mass. 137,) we cannot say that the facts recited did not warrant the finding of the judge that it was at least voidable at the choice of the mortgagor.
The second exception to the master’s report is that the mas
The next exception is to the master’s charging the defendant with the sum of fifteen hundred dollars a year as the fair rental which might have been earned under prudent management. The evidence is not reported, nor does it appear in terms whether the master found bad faith in the management. The report significantly states that bad faith was charged. We must make such assumptions unfavorable to the defendants as may be necessary to support the master’s finding. In cases where there has been no wilful default or gross negligence, this court has shown an anxiety, which we fully share, to mitigate rather than to enhance the severe liabilities of a mortgagee in possession. Grerrish v. Black, 104 Mass. 400. Brown v. South Boston Savings Bank, 148 Mass. 800, 308. But when we are bound, however much we may hesitate in our belief, to assume bad faith on the mortgagee’s part throughout the whole transaction, we cannot say that the master erred in holding him liable for what he might have made by reasonable diligence. Miller v. Lincoln, 6 Gray, 556. Richardson v. Wallis, 5 Allen, 78.
Then it is said that at least the mortgagee was not chargeable after a conveyance of the premises by him pendente lite. It is said that his right to transfer his mortgage'is an incident to which the mortgagor’s right to redeem is subordinate. The right to transfer a mortgage stands on the same footing as the right to transfer any other property, and a transfer of a mortgage pendente lite has no greater effect upon the right of the parties than any other transfer. Moreover, although the law, for the benefit of the plaintiff, cuts the conveyance down to an assignment of the mortgage, the transfer did not purport to be a transfer of or under the mortgage, but a transfer of the fee. See White v. Maynard, 54 Vt. 575, 580.
No error is pointed out to us, nor do we discover any in respect of the allowances for repairs and improvements.
But facts were stated at the argument which may make it important to settle at once a matter that must be settled sooner or later, and accordingly we will proceed to decide whether the plaintiff has made out his allegation, or, more accurately, whether we can say that the master’s finding to that effect was wrong.
It would be odd if statutory language which seems so clearly to require possession of a kind which is recognized as capable of interruption should be held to have created a purely fictitious and constructive possession with which no one could interfere. But we take the tradition of the court as we find it, and on any question of title apply it as it has been applied. The defendant as first mortgagee has no interest to deny the plaintiff’s foreclosure, for reasons which have been given. If he acquired an interest in the equity subordinate to the plaintiff which would give him a better standing, he is subject to the above quoted rule, so far as it has been carried by decision. If it should be replied that the defendant in entering and keeping possession was acting by a paramount right, and that he has a right to rely on any effect which that might have, we should rejoin that, viewed in that way, the defendant’s possession claiming the fee on the footing that the first mortgage had been foreclosed was not directed against or intended to affect any relations between the plaintiff and the owner of the equity, since all such
Decree affirmed.
The finding of the master upon this point was as follows: “ I find that, as the entry of the plaintiff under his said mortgage was properly made, and the certificate thereof was made and recorded in accordance with the statutes, it was effectual and sufficient to accomplish the purpose for which it was intended, and gave full and authoritative notice to all persons of the fact, and the date of the mortgagee’s peaceable entry, and the cause of such entry, end his purpose to foreclose, and an implied intention on his part to keep the possession he had thus lawfully acquired for the term of three years; that personal occupation of the said mortgaged estate by the plaintiff himself, or the actual appropriation of the rents and profits, during the three years following said entry is not necessary; that the actual possession of the said mortgaged premises by the defendant Richards and his agents after said entry was, at best, nothing more than the possession of a prior mortgagee, and was consistent with the plaintiff’s possession as second mortgagee taken as aforesaid, although said Richards then claimed title in fee to the said premises; and I find that the plaintiff’s said mortgage has been legally foreclosed.”