Vahey v. Bigelow

208 Mass. 89 | Mass. | 1911

Hammond, J.

This is an action against the makers of a promissory note secured by a power of sale mortgage of real estate, to recover a balance alleged to be due after applying towards the payment of the note the proceeds of the sale of the security. The case was tried in the Superior Court without a jury. At the close of the evidence the defendants asked the judge to rule as matter of law that the plaintiffs were not entitled to recover. The judge refused so to rule, and having so refused found for the plaintiffs in the sum of $4,004.47. The defendants made no special requests for findings either upon the question of notice or upon the manner of foreclosing; and the only question raised upon the record is whether the ruling requested should have been given.

The sale was advertised as required in the power of sale. “No further advertising was done. No posters were printed and none was put up in a public place. No handbills were distributed. No prospective purchasers were notified or sought. All that was done was a mere literal or bare compliance with the power contained in the mortgage, except as appears from the testimony of Richards” as to notice to the defendants. There were “ not more than ten present at the sale, and the only bid made was that of . . . Richards of $7,200.” At the time of the foreclosure neither of the defendants had any interest in the real estate described in the mortgage, each having sold out more than two years before. Richards, who throughout the foreclosure proceedings acted as the attorney of the plaintiff and who took his deed as such, testified in substance that “ his remembrance ” was that before the sale he notified each of the defendants by sending a copy of the advertisement thereof. There was however “ direct, affirmative and positive evidence . . . tending to show that the . . . defendants never received any notice of the sale.” On the question whether any such notice was given or received, the evidence was conflicting and would warrant a finding either "way. It was a question of fact for the decision of the judge as the trier of fact. The fair market value of the property at the time of the foreclosure sale was found by him to be $10,000.

“In an action upon a mortgage note to recover the balance due after a foreclosure sale where the mortgagors were not the owners of the equity at the time of the sale we think that it is open to the makers of the note to show, as bearing upon the amount due, that the sale was not conducted as it should have been, and that more should have been realized, especially if the holder of the mortgage was himself the purchaser.” Morton, J., in Boutelle v. Carpenter, 182 Mass. 417, 419. And accordingly in that case it was held that it was competent for the trial judge under the circumstances therein disclosed to consider whether or not the sale was properly conducted. The property had been bought by the mortgagee for $50, and it was agreed by the parties that, if it was competent for the judge to consider whether or not the sale had been properly conducted, the amount of $800 instead of $50 should be credited on the note. The trial judge considered the question and made the larger deduction, and his action was sustained. In that case the defendants were not notified of the proposed sale.

It is argued by the defendants that the present case is in substance the same as Boutelle v. Carpenter. It is to be noted that the defendant here did not ask for any specific ruling that if the sale was not properly conducted the full value of the property should be credited. They asked in substance for a ruling that as matter of law the court was bound to find that the foreclosure proceedings were not properly conducted.

The general finding was for the plaintiff and that finding is to stand if it be warranted in law upon any possible view of the evidence. There is no doubt that “ the court will require entire good faith in a mortgagee acting under a power; but if he acts in such good faith, and fully conforms to the terms of his power, we cannot set aside a sale because it is a hardship upon the mortgagor. The hardship, if any, results from the contract of the mortgagor, and we cannot relieve him from it without violating the rights of the mortgagee.” Learned v. Greer, 139 Mass. 31, 32. Under the circumstances disclosed in that case it was said: “ He [the mortgagee] had the power of adjourning the sale, but he was not obliged to do so, in the absence of any evidence that an adjournment would be of any benefit. He had the right to bid himself; and the facts that no other bidders were present, and that he purchased through an agent, do not make the sale invalid, nor does the fact that the estate brought less than its value as found by the master. Wing v. Hayford, 124 Mass. 249. King v. Bronson, 122 Mass. 122.” If the mortgagors relied upon the allegations that the sale was not made in good faith or not properly conducted, the burden is upon them to show it. Wadsworth v. Glynn, 131 Mass. 220.

In the case before us there was a strict compliance with the terms of the power. The evidence further warranted the findings that the mortgagees gave notice to the mortgagors of the intended sale and acted in good faith. The judge was not bound to find as matter of law that an adjournment of the sale would have been for the benefit of the mortgagors. The hardship, it any there be, to the mortgagors arises from the nature of the contract and not from the method in which it was carried out. There was no error in refusing to give the ruling requested.

The defendants further urge that in no event could the sum of $1,262.96 being the amount of taxes assessed upon the property before foreclosure and paid by the plaintiffs, be included in the sum due on the note. A short answer to this is that this question is not raised on the record. It was not specifically raised, and is not involved in the general ruling requested.

¡Exceptions overruled.