Dennett v. Codman

Knowlton, J. The report in this case presents but the single question whether the decree should require the plaintiffs to redeem within a time stated, or should allow redemption “ at any time before a valid and effectual foreclosure of said mortgage by a new execution of the power of sale therein, or otherwise.” In the bill, the plaintiffs offer to pay the amount found due, and pray that an account may be taken, and that they may be permitted to redeem. The application is in the ordinary form of a bill to redeem, and the allegations in regard to the invalid sale do not change the nature of the proceedings, or give the plaintiff's any greater rights, or call for any further relief, than if no sale had been made. The decree is in the form usual in cases of this kind, and such a decree as the plaintiffs seek is, so far as we are aware, without precedent. Stevens v. Miner, 110 Mass. 57. Dyer v. Shurtleff, 112 Mass. 165, 166. Briggs v. Briggs, 135 Mass. 306. Tetrault v. Labbé, 155 Mass. 497. Robertson v. Norris, 1 Giff. 421. Jenkins v. Jones, 2 Giff. 99. The statements and offer in the bill, as well as the prayer of it, imply that the plaintiffs are ready to redeem within a reasonable time. The only right which a mortgagor has under our statute, after a breach of the-condition of the mortgage, is. a right in equity to redeem. He may bring his suit, if he chooses, without having previously made a tender of payment. Pub. Sts. c. 181, §§ 21-27. On the bringing of the suit, it becomes., the duty of the court to ascertain what sum is due on [375] the mortgage, to fix the time within which payment shall be made, and to enter a decree that on payment within that time the plaintiff shall have possession of the premises and hold them discharged of the mortgage. Pub. Sts. c. 181, §§ 28-33. These provisions are applicable as well to mortgages with a power of sale as to those which contain no such power. Way v. Mullett, 143 Mass. 49. The mortgagor who elects to bring an ordinary bill to redeem waives all claim of right to have the property sold by the mortgagee under the power. Indeed, in a mortgage with a power of sale in the ordinary form, he has no such right. The power is inserted for the benefit of the mortgagee, to be exercised or not, as he sees fit. It may well be that, if a sale has been made fraudulently, or in any such way as to be invalid against the mortgagor, he may bring a bill asking to have it set aside, and to be permitted to redeem at any time before the foreclosure of the mortgage by a valid sale, or by the expiration of three years and continued possession by the mortgagee taken and held on account of the breach of the condition of the mortgage. There might be equitable grounds for permitting the mortgagor to stand in the same position as if a fraudulent or unlawful sale had not been made, and for giving him a long time in which to redeem; but what order should be made on a petition asking peculiar relief in a case of that kind, it is unnecessary now to determine. It is enough, in the present case, to say that this is an ordinary bill to redeem, in which no peculiar relief is prayed for, and in which the accounts were taken and the amounts due determined without a suggestion that the plaintiffs were not ready to perform the offer contained in their bill, or that any peculiar form of decree was desired. Nothing appears to indicate that the justice fixed a time shorter than was reasonable under the circumstances of the case, and no question in regard to that part of the decree is before us. Decree affirmed.