Clark v. Griffin

Morton, C. J. The right of the plaintiff to maintain this action depends upon the question whether the mortgage given by the defendant to Sophia A. Clark was foreclosed by the sale to the plaintiff under the power of sale contained therein. Pub. Sts. c. 175, § 1. Lowe v. Moore, 134 Mass. 259. It is admitted that the mortgagee complied with all the requirements of the mortgage in making the sale, and gave a deed in due form to the plaintiff; but before the sale took place, though after the advertisement, the defendant brought a bill to redeem, in which he in substance offered to pay such sum as should be found due from him, and filed in the proper registry of deeds a notice of the pendency of such bill under the Pub. Sts. c. 126, § 13. It was held in Way v. Mullett, 143 Mass. 49, that in effect such a bill, in the case of a power of sale mortgage, was equivalent to a tender before sale, in so far that it prevented a foreclosure. This is decisive of the case at bar. By bringing his bill to redeem, the defendant suspended the mortgagee’s right of foreclosure by sale, and therefore the sale to the plaintiff did not give him the right to recover possession of the mortgaged premises under the Pub. Sts. c. 175. The St. of 1888, c. 433, has no application, because it was passed after this suit was commenced. It however has some significance as 542 indicating the understanding of the Legislature that, except for that statute, a mortgagee could not proceed with a sale in any event after the bringing of such bill to redeem by the mortgagor. Judgment for the defendant.