Roche v. Farnsworth

| Mass. | Mar 15, 1871

CHAPMAFr, C. J.

Without considering the question whether, by the terms of the power of sale, the defendant Farnsworth was authorized to make a sale for nonpayment of the increased interest due under his contract with the plaintiff, we think there was a defect in the notice that rendered the sale invalid. It describes the mortgage as being made by George G. Smith to Amos Farnsworth, but does not name the present owners, who are the plaintiffs, nor the assignee of the mortgage, who is the defendant Farnsworth. It purports to be made by order of the assignee ; but does not name him, and is signed by no one. These are obscurities that are inconsistent with the degree of clearness that ought to exist in such an advertisement.

The mortgagee sells under a power. The form used in the mortgage does not require him to notify the holder of the equity of the intended sale; but it is not an unreasonable strictness to require him to state what property he proposes to sell, and who proposes to make the sale, and who advertises it for sale. The general doctrine is, that a power must be executed in strict compliance with its terms. 4 Kent Com. (6th ed.) 377. This court has applied this doctrine to powers of sale contained in mortgages, and held that a bare literal compliance is not enough. Montague v. Dawes, 14 Allen, 369.

There is the more reason for this, where the power is made to a mortgagee, who is interested merely for himself, and has opportunities for collusion and for taking unfair advantage of the mortgagor. In this case, the advertisement brought no bidders to the auction; and none were there except Farnsworth’s attorney, and the defendant Riley, who was brought there by the auctioneer, It could hardly be called a sale at public auction. The plaintiff, though living near by, had no actual knowledge of the auction till after it occurred; and has been guilty of no loches in attempting to arrest it. Decree that the plaintiffs may redeem.

The final decree afterwards entered in this suit was as follows: “ That the plaintiffs be allowed to redeem the estate from the mortgage set forth m their bill, on paying to the defendant Farnsworth the amount thereof with interest; and that the plaintiffs recover no costs of suit up to the time of the appeal taken by the defendants ; and that said Farnsworth pay the costs arising upon the appeal.”