O'Reiley v. Bevington

Knowlton, J. If the defendant Bevington, while in possession of the plaintiff’s real estate under the lease and the agreement, having income from the property with which to pay the interest on the mortgage to the Andover Savings Bank, had neglected to pay the interest, and permitted the property to be sold under the mortgage and had bought it, it is very clear that a court of equity, on the application of the plaintiff, would have deprived him of the benefits of the sale. But the master has found that, having acted discreetly and properly in the management of the property, he had no money with which to<.pay the interest due on the mortgage, and that the plaintiff, in breach of his contract, seriously interfered with the proper management of the real estate by refusing to vacate the rooms which he occupied. The question before us is presented by the finding of the master that “ Bevington by said conveyance acquired an absolute title to said premises, unless, as a matter of law, from the facts reported, his relation to the plaintiff was of such a nature that it was contrary to equity for him to take and hold said title.” We are of opinion that the facts reported are not inconsistent with a finding that his relation at the time of the sale had ceased to be that of an agent or trustee of the plaintiff for the management of the property and the payment of the interest due on the mortgage, and was that of a person acting solely on his own account. He had for a long time been trying to get the plaintiff to perform his agreement, and, being unsuccessful in that, had repeatedly told the plaintiff that he would have nothing more to do with him or his property. The plaintiff, after receiving the notification, had procured an attorney to advise and represent him in the matter’, and had employed an auctioneer and attempted to make a sale by public auction before [77] the foreclosure, but failed in the attempt". He then tried to sell it at private sale, and received in offer for it, which at one time he decided to accept, but afterwards rejected. After this, and before the foreclosure, he “went to Bevington and said that, if he would take hold of the property again, he [the plaintiff] would vacate the premises at once, and Bevington refused to do it.” The plaintiff and his attorney were at the foreclosure sale, and the defendant Bevington told them and the others present that “ he was there to bid in his own behalf, and to protect his own interests.” He was at that time the holder of a second mortgage on the property. All these things indicate that Bevington’s relation to the plaintiff as trustee and manager of the property had been terminated, on account of the plaintiff’s failure to perform his contract, and that the plaintiff had assumed the management and control of his own affairs. Subsequently, the plaintiff accepted from the Andover Savings Bank the balance of money received from the sale above the mortgage and expenses, and gave his receipt therefor. This was strong evidence of his understanding that Bevington at the time of the sale had ceased to be his representative. We certainly cannot say, as matter of law, that his relation with Bevington at the time of the sale was such as to render the sale invalid. Bill dismissed.