246 Mass. 356 | Mass. | 1923
The bill contains no offer to redeem. It asks that the foreclosure sale, no deed having been delivered to the purchaser, be set aside because no notice was given to the plaintiffs, and the price was less than the value of the property. The master to whose report no exceptions were taken, finds, that the foreclosure because of default in payment of principal was in compliance with law and in accordance with the conditions of the mortgage, and that there was no concealment of the time or place of sale or of the intention of the defendants, the mortgagees, to foreclose.
The plaintiff Rose Champagne, not being the widow nor an heir at law of the intestate mortgagor, must rely on other grounds for relief. But even if she brought a bill in equity which is still pending, claiming to be a creditor of his estate, and an attaching creditor stands in the position of a purchaser for value, the record fails to show any attachment. Whitney v. Metallic Window Screen Manuf. Co. 187 Mass. 557. If it be assumed that she is a creditor in some form, it is settled that a simple contract creditor cannot maintain a bill to redeem. McDougald v. Capron, 7 Gray, 278. Grant v. Duane, 9 John. 591, 611. Story Eq. Jur. § 1223. G. L. c. 244, § 18. It is also plain that she cannot avail herself of G. L. c. 244, § 33, that “ If the person entitled to redeem a mortgaged estate dies, his heirs, devisees, executor or administrator may make a tender or commence ... a "suit for redemption which the deceased might have made, commenced or prosecuted.” Williams v. Van Dam, ante, 61. The agreement in writing of the mortgagees with her that they would not foreclose until the mortgagor’s estate had been settled, and the final oral agreement with Archie Gingras, one of the mortgagees, that when the mortgage was foreclosed he would buy the property as cheaply as he could, “ hold it for a while and then sell it and give her the benefit of the excess of such sale price over the amount of his claim,”
The other plaintiffs, the widow, heirs at law of the mortgagor, and the administrator of his estate, fail to show on the facts appearing in the record that the foreclosure was irregular because not strictly in accordance with the proper execution of the power, which did not require that they should receive personal notice of the time and place of sale. G. L. c. 244, § 14. At least twenty people attended the sale and no request for an adjournment was made, and, even if the defendant Holly, who was the purchaser and a tenant of a part of the estate, previously had offered the administrator a much larger amount, which he declined to accept, the mortgagees were ignorant of the offers as well as of the fact that if necessary he would have increased his bid in order to protect himself. The bidding was competitive and in the absence of any fiduciary or confidential relations or fraudulent purpose Holly had the right to obtain the property for the amount which he bid.
The master’s finding that inadequacy of price had not been shown must stand and, the mortgagees having “ foreclosed because they wanted their money, and not from any improper motive,” and the sale having been conducted with reasonable regard for the interests of those claiming under the mortgagor, the decree dismissing the bill should be affirmed. King v. Bronson, 122 Mass. 122. Wing v. Hayford, 124 Mass. 249. Austin v. Hatch, 159 Mass. 198. Turansky v. Weinberg, 211 Mass. 324. Bon v. Graves, 216 Mass. 440. Taylor v. Weingartner, 223 Mass. 243, 247, 248. Winchester Rock & Brick Co. v. Murdough, 233 Mass. 50.
Ordered accordingly.