178 Mass. 92 | Mass. | 1901
The only question in this case is whether there is jurisdiction in equity to order a foreclosure of the mortgage by a sale, according to the terms of the decree. In Hallowell v. Ames, 165 Mass. 123, the general rule was stated that in the absence of special facts calling for equitable aid, the court has no jurisdiction in equity to decree the foreclosure and sale of real estate conveyed by a mortgage which does not contain a power of sale. In ordinary cases the elaborate statutory provisions for the foreclosure and redemption of mortgages, contained in the Pub. Sts. c. 181, fix the rights of mortgagors and mortgagees, and exclude resort to other methods ; but when the terms of the mortgage as applied to the mortgaged property are such that the statutory provisions for foreclosure are not adequate to secure to both parties their rights, and to adjust the equities between them, the general jurisdiction of courts of equity, without reference to the Pub. Sts. c. 151, § 2, is broad enough to authorize a proper decree for foreclosure. This jurisdiction has repeatedly been recognized and exercised in this Commonwealth. Shaw v. Norfolk County Railroad, 5 Gray, 162. Haven v. Grand Junction Railroad & Depot Co. 12 Allen, 337,341. First National Ins. Co. v. Salisbury, 130 Mass. 303. Hallowell v. Ames, 165 Mass. 123. Old Colony Railroad v. Chadwick, 171 Mass. 239. In the case last cited the court says, “We think there is no doubt that a court of equity under our statutes has
In the present case the mortgage creates a trust, and there are elaborate provisions as to the protection of the rights of the parties if there is a breach of condition of the mortgage. The property conveyed includes nearly all the property of the mortgagor, real and personal, a part of it being real estate in Middlesex County, a part real estate in Suffolk County, and the rest a variety of articles of personal property on the mortgagor’s premises in Boston and in Cambridge. Because a writ of entry to foreclose a mortgage is a local action, if there should bfe a foreclosure by a suit under the statute, two actions would be necessary, one in Middlesex County and one in Suffolk. Separate proceedings would be necessary for a foreclosure of the mortgage on the personal property, requiring records in each of the cities where the mortgage is recorded. Pub. Sts. c. 192, §§ 7, 8, 9. For these reasons, to say nothing of other important reasons growing out of special provisions contained in the indenture of mortgage, we are of opinion that the provisions of' the statute are not adequate to protect and enforce the rights of the parties in the best way, and that, therefore, there is jurisdiction in equity to order a sale of the property under the mortgage.
Decree affirmed.
