323 Mass. 559 | Mass. | 1949
The defendant waives his defence as to the third count, so that in this court the question raised is the plaintiff’s right to recover on the first and second counts the unpaid balances on two promissory notes, each made by Belmont Realty Corporation, payable to the plaintiff, and indorsed by the defendant.
The only defence asserted is that certain mortgages on real estate given by Charles Petit and Annette Petit to Belmont Realty Corporation (the maker of the notes in suit) had been pledged by it as collateral for them; that these mortgages had been foreclosed; that the proceeds of the foreclosure sales had been applied upon the notes in suit but were insufficient to satisfy them; and that before the foreclosure sales no notice in writing of the intention of the plaintiff, as successor in title to the mortgagee, to foreclose had been mailed to the defendant. For simplicity and convenience we assume, without deciding, that the facts asserted for the purposes of this defence as above stated are established by the record. The only question intended to be raised is whether G. L. (Ter. Ed.) c. 244, § 17B, inserted by St. 1945, c. 604, § 1, applies in the circumstances. The trial judge found for the plaintiff. The Appellate Division dismissed the report, and the defendant appeals.
The new § 17B provides that "No action for a deficiency shall be brought ... by the holder of a mortgage note or other obligation secured by mortgage of real estate after, a foreclosure sale by him . . . unless a notice in writing of the mortgagee’s intention to foreclose the mortgage has been mailed ... to the defendant sought to be charged with the deficiency . . . together with a warning of liability for the deficiency . . . not less than twenty-one days before the date of the sale under the power in the mortgage . . .. ”
We think it plain that this statute was designed for the protection of mortgagors and of those liable with them or through them on mortgage obligations. The notice was required so that such persons could look out for their interests at the foreclosure sale. The statute was not designed
It by no means follows, as the defendant argues it does, that the statute can be evaded by requiring every mortgagor to give an ordinary note and then to give his mortgage note as collateral to it. In such a case the same person would be liable on both notes and as mortgagor would be entitled to the statutory notice of any foreclosure sale before he could be held for any deficiency on the mortgage note. He could therefore protect his interest in the land, and the design of the statute would be accomplished.
Order dismissing report affirmed.