Stickney v. Evans

Colt, J. The plaintiff took from Olmstead a second mortgage containing a power of sale, as security for money then lent by the plaintiff to him. At the same time the defendant, by a written agreement reciting the transaction between the plaintiff and Olmstead, promised the plaintiff, in substance, that he would [203] purchase the property mortgaged, and pay the amount due on the plaintiff’s mortgage, in case he should be obliged to sell, and should advertise and sell the same. The premises were sold under the power of sale for breach of condition, subject to the prior mortgage. The defendant did not appear at the sale, and the equity of redemption was sold for a nominal sum. This action is to recover damages for the defendant’s failure to perform his agreement. At the trial, the judge instructed the jury that the words of the agreement had reference to a sale under the power contained in the mortgage; and that the plaintiff was not bound to adopt any other mode of advertisement and sale than was therein specified. They were also instructed that the plaintiff, in conducting the sale, was bound to exercise a sound discretion, and to act with perfect good faith and an honest intention to protect the estate for the benefit of all parties concerned. It was ruled that the published notice of the sale was sufficient, if it contained the same description of the premises as was contained in the mortgage; and it was admitted that the plaintiff was bound to give the defendant reasonable notice of the time and place of sale. Under these instructions, the jury must have found that, after reasonable notice to the defendant, the property was sold accordingly to the requirements of the mortgage, in perfect good faith and in the exercise of a reasonable degree of diligence to protect the interests of all concerned. There is no good reason shown for disturbing the verdict. The construction given to the agreement was the true construction. The plaintiff had no authority to sell except under and in accordance with the power contained in the mortgage. The advertising and selling required by the contract must have referred to such a sale. The defendant contracted to bid the amount of the mortgage; and the sale was properly advertised and fairly made. Montague v. Dawes, 14 Allen, 369. Wing v. Hayford, 124 Mass. 249. The description in the public notice of the sale was sufficient. It follows the description by metes and bounds contained in the mortgage deed, and refers by book and page to the registry of deeds, and by book and page to a plan recorded in the office of the superintendent of public lands. Model Lodging House Association v. Boston, 114 Mass. 133. Exceptions overruled.