270 Mass. 392 | Mass. | 1930
This bill in equity is brought to compel the defendant Slovin tc execute and deliver to himself, purchaser at a foreclosure sale, a deed of the premises so sold in accordance with the terms of such sale. The plaintiff also prays for an accounting of the proceeds of the sale, and that the defendant Slovin be enjoined from holding another foreclosure sale. In addition to other defences the statute of frauds is pleaded in the answer.
A master to whom the case was referred found that the real estate in question was subject to a first mortgage held by the Merchants Trust Company of Lawrence in the sum of $8,000; that the defendant Slovin held a second mortgage of $4,100, accrued interest amounting to $160.30, a charge of $480 for interest paid on the first mortgage, and a charge of $175 as expenses of the foreclosure sale, making the total amount due on the defendant’s mortgage $4,915.30; a third mortgage was held by the plaintiff for $1,665, together with interest thereon at the rate of seven per cent from June 22, 1927. Slovin, acting under the power of sale contained in the mortgage held by him, duly caused a notice of sale to be advertised in the Lawrence Telegram, and engaged one Fravole, then a duly licensed auctioneer, to conduct the sale. On May 31, 1928, the sale was conducted on the premises. Slovin, his attorney, the plaintiff’s attorney and the plaintiff’s son were present. The auctioneer went upon the premises, read the notice of sale, and called for bids to be made in accordance with the notice. Slovin then bid $12,000 for the property. The auctioneer called for further bids, and there being none he declared the property sold for $12,000 to Slovin. Both the bid and the acceptance were oral, and at the hearing before the master no evidence was introduced of any writing referring to either. Nor was there evidence of a writing or memorandum of the sale by the auctioneer or any
An auctioneer is the agent of- both parties and has authority to make a memorandum sufficient to satisfy the statute of frauds binding both seller and purchaser. Giolitto v. Dingolo, 251 Mass. 38, and cases cited.
When a mortgagee forecloses by a sale pursuant to a power contained in the mortgage and becomes purchaser at the sale for a price in excess of the amounts due under the provisions of the mortgage, and the auctioneer makes arid signs a memorandum in conformity with the statute of frauds, a suit in equity against such mortgagee can be maintained by junior lienors, if they exist, or by the mortgagor to compel an accounting. Pilok v. Bednarski, 230 Mass. 56, 58. Hood v. Adams, 124 Mass. 481, 483, 484. Those considerations, however, have no application to the facts in the case at bar. The failure of the auctioneer to make any memorandum of the purchase and sale as required by the statute of frauds makes it plain that there was no enforceable sale. The attempted sale was a nullity and never had any binding force or effect upon anyone. It follows that the foreclosure proceedings left the parties, so far as their respective interests' in the mortgage are concerned, in the same position as existed before the attempted foreclosure was commenced. When the statute of frauds has been pleaded as in the case at bar, the burden of proving compliance with its terms rests upon the plaintiff. Price v. Weaver, 13 Gray, 272. Browne, Statute of
Final decree affirmed with costs of the appeal.