Pope v. Burrage

115 Mass. 282 | Mass. | 1874

Morton, J.

The report finds that there was no want of good faith on the part of the holders of the mortgage, and that they did all that was required by the terms of the power, and by the good faith required of a mortgagee selling under a power.

It also finds that the advertisement gave no notice, that any sum of money would be required as a deposit at the time of the sale, or that the terms would be then stated, that at the sale the auctioneer gave notice that a deposit of two hundred dollars would be required, unless the purchaser was known either to the holder of the mortgage or to the auctioneer, and that Russell was present at the sale in consequence of having seen the advertisement, and did not bid because he had not the sum of money to make the deposit. The only question reserved is whether the fact, that a deposit was required as above set forth, thus preventing a bid by said Russell, of itself rendered the sala invalid.

The power of sale in the mortgage is very broad. It authorizes the mortgagee or his assigns to sell the granted premises at public auction on or near the premises. It does not undertake to prescribe the mode in which the auction sale shall be conducted, and by reasonable implication it authorizes the mortgagee to adopt such terms of sale as are usual and necessary to execute it with effect. The power to do an act includes the power to do all such subordinate acts as are usually incident to or are necessary to effectuate the principal act in the best manner. Goodale v. Wheeler, 11 N. H. 424. The literal terms of the power would authorize a sale for cash. The requiring a deposit of two hundred dollars, unless the purchaser was known to be responsible, was designed, and naturally tended, to protect the interest of the mortgagor and mortgagee. We cannot say, as matter of law, that it was unreasonable. The finding of the court that the donee of the power did all that was required by the terms of the power, and by the good faith required of a mortgagee selling under a power, implies that the terms adopted at the sale were usual and reasonable, and calculated for the protection of all parties interested.

A similar question arose in Model Lodging House Association v. Boston, 114 Mass. In that case the donee of the power required a deposit of one hundred dollars at the time of the sale, though this was not stated in the published notice as one of the terms of sale. It was found as a fact that the donee acted in good faith, and it was held that the adoption of this condition did not, of itself, invalidate the sale and defeat the title of a stranger who purchased in good faith.

Upon the facts stated in the report, we are therefore of opinion, that no sufficient ground is shown to set aside the sale and defeat the title of the purchaser. Bill dismissed.