Radley v. Shackford

Carroll, J. The defendant mortgaged certain real estate to Ida H. Jarvis to secure a note for $5,500. No interest had been paid thereon since August 19, 1913. In March, 1916, the plaintiff, to whom the note and mortgage had been transferred for the purpose of foreclosure and suit, sold the premises at foreclosure sale to the mortgagee, Ida H. Jarvis, for $4,000. In this action the plaintiff seeks to recover the balance due upon the note. The sale was advertised in the Chelsea Gazette, as required by the mortgage, on February 12, 19 and 26, 1916. On March 4, 1916, notice of the auction sale was published in the Boston Transcript and fifty posters giving notice of the sale were posted in various parts of Chelsea. For a year previous to the sale the property was in the hands of a real estate broker, one William Williams, for the purpose of sale; he was also a duly licensed auctioneer and sold the premises at the foreclosure sale. The defendant February 12,1916, received a copy of the Chelsea Gazette. She was present at the sale, and although there was snow on the ground and it was snowing at the time, she made no protest nor did she request an adjournment. From January, 1914, the plaintiff repeatedly made demands on the defendant for the payment of interest and principal. The defendant offered to show that the fair market value of the real estate was $6,500. This evidence was excluded. There was a verdict for the plaintiff for the sum of $2,510.14. Assuming this evidence to be competent (Bon v. Graves, 216 Mass. 440), it is not enough standing by itself to establish bad faith in the execution of the power. Learned v. Geer, 139 Mass. 31. Vahey v. Bigelow, 208 Mass. 89, 93. The note was long overdue, the interest had not been paid for more than two years, and no taxes for the years 1913, 1914 and 1915 had been paid by the mortgagor. The sale was duly advertised, and, though the defendant was present, she did not object to the sale nor ask for an adjournment. We find no evidence of fraud in the conduct of the plaintiff. Apparently her purpose in making the sale was to obtain a fair price for the property in accordance with the terms of the power, and not to secure it for herself. While the case may be a hard one for the defendant, the [438] burden resting upon her, to show bad faith or that the sale was not properly conducted, has not been sustained. Vahey v. Bigelow, supra. Exceptions overruled.