Stevenson v. Dana

166 Mass. 163 | Mass. | 1896

Holmes, J.

It is found that the trustees who foreclosed the mortgage acted in good faith, and it is plain on the evidence that they did all that their duty required in the effort to protect the plaintiff’s rights. If the foreclosure sale is to be opened, it must be on the technical ground that, in spite of their intent and belief, the trustees made some mistake of which the plaintiff could complain.

We find no such mistake. The mere fact, if it be one, that the land sold for a good deal less than it was worth, is not enough to make out a case for the plaintiff. The land was bought by the holders of the mortgage, and we suppose that mortgagees rarely offer more than the amount of the debt, yet it would not be desirable to invalidate their purchases wholesale. Equity requires a foreclosure to be conducted with entire good faith, and with reasonable regard for the mortgagor’s interests, it is true, but after a certain point it must respect bargains. It does not require the land to be sold for its value. It only requires reasonable efforts to be made to avoid a sacrifice, and to obtain the value of the land. See Austin v. Hatch, 159 Mass. 198; Learned v. Greer, 139 Mass. 31; King v. Bronson, 122 Mass. 122, 128. The trustees did all that could be expected, and more than could be demanded of them, in the way of advertising and personal persuasion, to get bidders at the sale. The plaintiff knew of the sale, and when it. came off was there with his lawyer. By his conduct in twice making a bid which he could not make good, and in protesting against the sale, he did all in his power to prevent a successful auction, and was the cause of the land being bid off at $4,000 less than had been offered before.

It is said that the adjournments were not advertised in proper form, and that would be true if it had been necessary to advertise adjournments. But under the circumstances of this c.ase it was not necessary. See Hosmer v. Sargent, 8 Allen, 97. The adjournments were all made at the plaintiff’s request, and sufficient notice was given to protect his interest. When the sale opened there were a number of persons present, and if it had been finished at once, as it would have been but for the plaintiff, there could have been no question that it was fair, so far as the gathering of possible bidders was concerned. It is found that the trustees honestly believed that no further reasonable adjournments would be likely to get higher bids. There is nothing but the finding that the land was worth more than the mortgage to lead to a different belief, and that is not enough to impeach the sale.

The sale was on February 16, 1895. It is objected that the trustees then had in their hands a check for $2,000, which the plaintiff had given them in October, 1893, on account of the principal, but which the trustees had not been able to get paid. But the conditions of the mortgage were broken, and the possession of the check did not prevent a foreclosure. It is true that the judge who tried the.case allowed the plaintiff to redeem on paying twelve per cent interest. But the facts on which the decree was based are reported, and the question before us really is a question of how far the court will go in reopening sales. We are not prepared to go quite so far as this. It is true that the plaintiff probably will suffer a loss, but he has brought it on himself by his own conduct.

Bill dismissed.