Rehrig v. Inman

Wait, J. This cause is before us upon the appeals of the defendant from an interlocutory decree and a final decree entered by the Superior Court. Motion has been filed by the plaintiff after the periods for filing appeal had expired asking that leave be granted to claim and enter her appeal. This motion must be denied. Belief that one opponent will [433] claim no appeal if the other does not, is not a sufficient excuse for omitting to take appropriate action to secure and perfect an appeal, unless such belief is induced by fraud. There is no allegation and no proof of fraudulent conduct on the part of the defendant which caused the plaintiff to entertain her erroneous belief. There was no error in the order overruling the defendant’s exceptions to the master’s report. The finding of fact, that there was nothing due the defendant, as mortgagee, at the time of the foreclosure of her mortgage, cannot be set aside. There is no report of all the evidence. In such case, the master’s findings of fact must stand. Martin v. Barnes, 214 Mass. 29. Nor was there error in the final decree. If nothing was due the mortgagee at the time of foreclosure, the sale made under the power of foreclosure was invalid. Rogers v. Barnes, 169 Mass. 179. The plaintiff, therefore, was entitled to a reconveyance upon paying such sum as might be found due on an accounting under G. L. c. 244, § 20. The facts found justified the conclusion that such expenditure as had been made upon the premises, although greater than ordinarily would be allowed, MacFarlane v. Thompson, 241 Mass. 486, had been authorized by the mortgagor. The defendant says in her brief that the amount found due was agreed to be correct if the ruling of the court was proper. It is not open for her, therefore, now to contest it. The order must be Decrees affirmed.