King v. Bronson

Endicott, J. The mortgage in this case provides, that, after the expiration of sixty days from the breach of any of the conditions named therein, the mortgagee or those claiming under l:im may sell the premises at public auction “ without further notice or demand, except giving notice” by advertisement for [127] three successive weeks in a newspaper. Upon non-payment, therefore, of interest due, which was a breach of one of the conditions, no demand was required by the terms of the power to be made upon the plaintiff, or the other parties bound by contract to pay or having the right to redeem. The right to sell was complete on the expiration of sixty days from the failure to pay interest, without further demand. The case finds that all the notices by advertisement were duly given, unless such notices are required to state for what breach of condition the sale is made. This statement is not required by the terms of the mortgage, and, in the absence of such requirement, we do not consider it necessary; the party upon whom the obligation rests of performing the conditions must be presumed to know or is bound to ascertain if there is a breach, and it is sufficient to state generally in the notice that the premises are to be sola under the power for breach of condition. This is in accordance with the usual practice. There appears to have been a literal compliance with the terms of the power, and the sale took place as advertised. This is sufficient to foreclose the mortgage, unless we can find, from a full disclosure of all the facts underlying the formal proceedings, that the defendant has not acted in good faith, or has failed in some respect to properly protect the interests of the plaintiff. But no act of the defendant is shown indicating that she did not proceed in good faith, supposing that she had done all required by the terms of the "power; and no dealings or negotiations on her part with the plaintiff appear by which he could have been misled, or by reason of which he was entitled to further notice. Indeed, the defendant did more than was required by the terms of the power in giving notice, for she sent to the plaintiff by mail, before the sale, a copy of the paper containing the advertisement. Whether he received it or not is immaterial; the act shows good faith on her part. On the other hand, it appears that the plaintiff knew in February, 1876, that the interest on the mortgage given by him was in arrear, and was informed that it must be paid, and was asked where Newton was, who then owned the equity of redemption. No formal demand was node upon him. He did not offer to [128] pay it, or make any attempt to have it paid. The case does not find that he saw the notice as published or sent to him, or knew that a sale was to be made under his mortgage; but it is found that he knew from some source that there was to be a sale of the property or some interest therein, and, “ without making proper inquiry, carelessly but honestly assumed and believed that it was not to be a sale under the power contained in the mortgage made by him.” He made no effort to ascertain the facts, and did not attend the sale. A mortgagor who knows that there has been a breach in the condition of a mortgage given by him, and that there is to be a sale of the premises for some reason, and has not been misled by any act or want of good faith on the part of the mortgagee, and who carelessly assumes without inquiry that the sale is not under his mortgage, and fails to attend, is not entitled in equity to have the sale set aside. A court of equity will not assist a party who has lost his rights through his own negligence. Hendrickson v. Hinckley, 17 How. 443. The case is clearly distinguishable from the cases cited at the argument: Montague v. Dawes, 14 Allen, 369, 373. Roche v. Farnsworth, 106 Mass. 509. Drinan v. Nichols, 115 Mass. 353. Nor is there any reason for opening the sale, because the premises were sold at the auction for less than their value. Taken in connection with other facts, tending to show bad faith or that the mortgagor had been misled by some act or word of the mortgagee, such a fact may have some significance ; but mere inadequacy of price is not sufficient to invalidate the sale. As this view is decisive of the case, we have not considered any of the other questions stated in the report and argued at the bar. Bill dismissed.