Brown v. Wentworth

Holmes, C. J. This is a bill to redeem land from two mortgages. It was dismissed by the judge of the Superior Court who tried the case, and it comes here by appeal. The judge [52] found that the mortgagee acted in good faith and with reasonable regard for the rights of the mortgagor, and that the property was fairly sold and brought a fair price. Of course these findings, so far as they depend on oral testimony as to the conducting of the foreclosure, would not be disturbed except upon strong reasons. We see no ground for doubt that the findings were right, subject to the questions which we shall mention. Some comment is made upon an alleged refusal by the mortgagee to accept $400, (about the amount of the interest for one year, interest for more than two years being due,) if he would postpone the sale. But the mortgagee evidently regarded the suggestion-as the talk of an irresponsible person, and very probably was right. The money was not produced. There is no indication of any animus on his part other than an old man’s weariness and desire to get rid of a mortgage which was always in arrears. He put the foreclosure into professional hands, and relied upon those whom he employed to see that all proper steps were taken. Cranston v. Crane, 97 Mass. 459, 464. In the first place, the plaintiff claims a right to redeem as matter of law because the bill, although filed after the sale, was brought before the conveyances were executed to carry it out. We are of opinion that she has no such right. Unless there was some defect in the proceedings, her rights were gone when the contract was made. This, we apprehend, would be so apart from St. 1888, c. 433, (see Way v. Mullett, 143 Mass. 49, 53; Pub. Sts. c. 181, § 21,) and we see no reason to doubt that that statute means that, even before the sale, if the property has been advertised, the filing of a bill to redeem shall not interrupt the mortgagee’s right to proceed to conclude the plaintiff’s rights, unless the amount due is paid into court or an injunction issues. See 143 Mass. 55, 58. The plaintiff failed to pay the money into court and no injunction issued. Next it is said that the advertisement was bad, because it described the premises as woodland and did not mention that there was a somewhat well known hotel, the Winnepoyken House, upon them, and also because the paper selected was not a proper one. The first mentioned fact undoubtedly would be' a matter to be considered, if strictly true, although it hardly of itself and necessarily would invalidate the sale. But it is [53] not strictly true. The sale under the first mortgage is announced to take place in front of the Hotel situated on the premises. As to the newspaper the facts are these. The one selected was the Wenham-Hamilton Times, and it was chosen in order to comply with Pub. Sts. c. 181, § 17, St. 1882, c. 75, under the impression that it was published in the town of Hamilton where the mortgaged property was situated. Probably it was a mistake to suppose that the paper was published there in such sense as to make the choice of the paper compulsory, since it was a many headed publication like that dealt with in Rose v. Fall River Five Cents Savings Bank, 165 Mass. 273, and seems to have had its home in Beverly. But the choice was made in good faith by the agent to whom the matter was intrusted. The paper was published in the county, which is the only requirement of the mortgage and the alternative requirement of the statute. In its various forms it circulated in the town of Hamilton and the vicinity, and, although it is said that it does not appear that it was published at the proper times under its other names, it is for the plaintiff to show that it did not do so, so far as the fact is material. The chances are that the publications were simultaneous. The selection of the Wenham-Hamilton Times carried out in the nearest way possible the policy of the statute, which aims at making the sale known in the neighborhood rather than in large centres. We are of opinion that the foreclosure cannot be upset on this ground. See Stevenson v. Hano, 148 Mass. 616. It is said that, if the advertisement was sufficient, at least the sale was bad. The first mortgage embraced three lots, the second covered these and three others. The advertisements were printed consecutively, and announced both sales for the same time, that under the first in front of the hotel, the other in front of the barn. It is complained that, whereas the advertisement of the second mortgage announces a sale of the six lots, the first three subject to the first mortgage, in fact the sale under the first mortgage took place first and therefore only the three other lots remained to be sold, although in form the sale followed the advertisement. But it is obvious that this is the merest technicality. The persons present” at the first sale walked across the road and attended the second, understanding [54] what had been done. It could not matter to an intending purchaser under the second sale whether he bought the whole six lots only to see his title to three wiped out five minutes later, or whether he bought the three which were all that he could get. If any such intending purchaser had wished to buy under the second mortgage and to redeem from the first, he would have bid or made a tender at the first mortgage sale, which was all that he could do in any event. There is not the slightest reason to think that the mortgagor suffered, and the judge finds that the lots not included in the first mortgage brought a fair price at the second sale. The purchaser does not complain. He is a defendant. There was no attempt to depart in substance from the power given by the mortgage and from what was advertised, as in Donohue v. Chase, 130 Mass. 137, and this is not a case where the advertisement was wrong, as in People’s Savings Bank v. Wunderlich, 178 Mass. 453, and Fenner v. Tucker, 6 R. I. 551. See Bottineau v. Ætna Life Ins. Co. 31 Minn. 125. The last ground of attack, also bearing on the sale, is the allegation that the purchaser bought off another bidder from the second sale for $100. Whatever happened was without the privity or knowledge of the- mortgagee, and the judge finds that the man alleged to have -been bought off did not intend to become a purchaser in good faith, but merely meant to extort a payment by threatening to run the property up, and that the payment was made under that pressure, not for the purpose of preventing an honest bid. The finding of the judge was fully warranted by the evidence. We think it unnecessary to say more. Bill dismissed.