Feuer v. Capilowich

Pierce, J. These are two suits in equity growing out of the same facts. • Upon the completion of the pleadings the causes were referred to a master “to hear the parties and their evidence and report his findings to the court together with such facts and questions of law as either party may request.” The first suit was brought to have established the claim of the plaintiff that the defendant owed him on October 1, 1921, $150, as principal, and $164.50 as interest due upon a mortgage of $4,700, given to the plaintiff by the defendant on April 1, 1921. The bill alleges that the defendant has conveyed away all property that she owns which can be attached at law, with the intent and purpose of defrauding the plaintiff of legal means or remedy of recovery for the satisfaction of any judgment that he may obtain against the defendant, unless the plaintiff can secure the interest of the defendant in a mortgage and note held by her upon certain premises purchased by the plaintiff subject to such mortgage. The facts in reference to the alleged indebtedness of the defendant to the plaintiff upon the mortgage of April 1, 1921, above referred to, as found by the master in substance are as follows: The defendant defaulted in the payments due on the mortgage. The plaintiff undertook to foreclose the mortgage under the power of sale contained therein, and advertised the foreclosure sale to take place on November 15, 1921, but abandoned the sale on account of some inaccuracy in the advertisement. He then published another notice of foreclosure sale to take place “on Tuesday, November 25, 1921, at 9.30 o’clock in the forenoon.” The advertisement stated that the premises were “subject to a first mortgage of four thousand dollars ($4000) . . . and a second mortgage of three hundred fifty dollars ($350),” and that “The above premises will be conveyed, subject to all mortgages of record, taxes, municipal liens, assessments, and any and all encumbrances which have priority over this mortgage.” On Friday, November 25, 1921, a duly licensed auctioneer proceeded to the premises with an at [563] torney at law representing the plaintiff mortgagee. Before the sale was started upon the premises there were also present the plaintiff and an attorney at law representing the Snyders who were plaintiffs in the case tried with the suit of the plaintiff Feuer, and who then were the title holders of this property. Shortly before nine-thirty a.m. the auctioneer read the advertisement of sale which was to have taken place on November 15, 1921, and later abandoned. This advertisement differed from the advertisement of sale to take place on November 25, 1921, only in the fact that the date in the advertisement read Tuesday, November 15, 1921, instead of Tuesday, November 25, 1921. After reading the advertisement the auctioneer said “‘What am I bid for the property?’ Feuer, the mortgagee then said, ‘I bid $4,000.’ Mr. Simard, attorney for the Snyders, then asked Mr. Feuer what the amount of his interest in the property was, and Feuer replied, ‘Forty-seven hundred ($4700) dollars.’ Simard then said ‘I bid forty-seven hundred dollars.’ Feuer, the mortgagee, then bid five thousand dollars.” No more bids were made by any one, and the auctioneer declared the property sold to Feuer, the mortgagee. The auctioneer said to the mortgagee “I want your check for three hundred dollars” and after some discussion between Feuer and his attorney, Feuer made a check for $300 to the auctioneer and gave it to him. No further explanation of the sale was given by the auctioneer and no questions were asked by any of the parties present until after the auctioneer declared the property sold to the mortgagee. After the sale the mortgagee did not give a deed to himself of the property; he treated the sale as invalid, advertised a foreclosure sale of the property for an alleged breach of the mortgage, and began this pending suit by his bill filed December 28, 1921. Thereupon the plaintiffs in the second suit, as owners of the equity of redemption if the foreclosure sale was invalid, brought this pending suit by bill filed on December 31, 1921, to enjoin the mortgagee, Feuer, from selling the property as advertised; to compel Feuer to make, execute and deliver to himself as purchaser at the sale of November 25, 1921, a foreclosure deed of the said premises in the usual form; and to make an accounting to any of the plaintiffs as their rights may appear. As above stated this last suit was referred to a master and was heard under the [564] rule with the hearing of the first suit. The master made a single report covering both cases to which in its final form no objections were taken by Capilowich, the Snyders or Taken, as defendants in the first suit or as plaintiffs in the second. The plaintiff in the first suit and defendant in the second suit, Feuer, in each case took two objections identical in form to the master’s final report, as follows: “1. And the respondent objects to the exclusion of evidence of Feuer’s understanding and intention of what he was bidding for the property and whether he bid for the property or the equity of redemption. "2. And the respondent objects to the exclusion of Feuer’s testimony as to the conversation at the auction immediately following the bidding.” Feuer also made certain requests for rulings of law which the master refused to make as not within his province to make. Founded upon his objections and the refusal of. the master to make the requested rulings of law, Feuer duly filed exceptions. The Superior Court overruled the plaintiff’s exceptions in the first case and the defendant’s exceptions in the second case and confirmed the master’s report. Feuer, as plaintiff in the first case and as defendant in the second case, appealed from the order overruling his exceptions and also from the final decree entered in each case. The exception, founded upon the objection to exclusion by the master of the testimony of the mortgagee and purchaser at the sale, "that in making the bid of $4,000 and later of $5,000, he thought he was bidding these sums for the whole property and did not intend to bid these amounts above the amount of the first mortgage which was $4,000;” as also the exception to the exclusion of his testimony that immediately upon giving the check for $300 to the auctioneer after the property was struck off to him he made statements to his attorney, Benjamin, directing him to bring suit against Rosie Capilowich for $3,700, must be overruled. The advertisement of foreclosure was unmistakable and unambiguous in its declaration that the property offered for sale was the equity of redemption in the premises conveyed in mortgage to Feuer, that it was the title of the mortgagor, subject to an outstanding first mortgage of $4,000, and to all taxes, municipal liens, assess [565] ments, and any and all incumbrances which had priority over the mortgage title of Feuer. The advértisement and sale of the interest of the mortgagee in the premises subject to prior encumbrances were in conformity to the power of sale contained in the mortgage; and a sale of the whole property without the assent of all parties in interest would have been void. Donohue v. Chase, 130 Mass. 137. Fowle v. Merrill, 10 Allen, 350. Torrey v. Cook, 116 Mass. 163. It must be assumed as a matter of law that the mortgagee intended to sell ithe interest of the mortgagor and his own interest in the property under the power; and he is estopped to claim any other understanding or intent of his own act in exercising the power and in becoming a purchaser at 'the sale, which was had in his presence and.under his immediate supervision. It is the claim of Feuer, mortgagee and purchaser, that the final decree dismissing his bill with costs was erroneous because, as a matter of law, upon the facts found by the master the foreclosure sale was void. He rests his position upon the admitted fact that the sale was advertised for Tuesday, November 25, while the real week day upon which November 25 fell was Friday. He also in support of his contention relies upon the admitted fact that the statement in the advertisement of sale that the premises were “subject to a . . . second mortgage of three hundred fifty dollars ($350),” was not true as this mortgage had been previously discharged. In the circumstances disclosed such a result should not follow: the several advertisements were prepared by the mortgagee or under his direction; all interested parties attended the sale on November 25, the day of the month advertised for the sale; and the reading by the auctioneer of the advertisement of the sale for November 15, instead of that for November 25, which differed the one from the other in no material respect other than the date set down for sale, is not alleged to have prejudiced the mortgagor or any person interested. As regards the inaccuracy of statement in respect to the $350 mortgage, it is found by the master that all parties in interest knew that this mortgage had been discharged previously to the day of sale, and it further appears that the mortgagor and all persons in interest, other than the mortgagee, in open court waived any defects or irregularities in the sale and agreed “to make, or join in, any deed or other [566] instrument which may be necessary or desired to confirm the foreclosure sale which took place on November 25, 1921. ...” The defendant does not argue the exceptions taken in the second case other than those above considered; they accordingly must be taken to be waived. It results that in each case a decree should be entered affirming the decree with costs. Decrees accordingly.