Bennett v. Healey

By the Oouri. ElANDeau, J. — The note to which the mortgage in this case is security, is disembarrassed of all questions of penalty, compound interest and similar issues that have characterized previous cases. It was simply a note for $390, dated on 3d day of October, 1856, and payable in one year from date. There can be no difference of opinion about the amount due on such a note, except through disagreement as to payments that may have been made, which is a mere question of fact. The mortgagee claimed in his notice of sale $381 25, a sum, according to the complaint which must be [248] taken as true, double tbe amount due on tbe note. He became tbe purchaser himself, bidding tbe full amount claimed to be due. No money changed bands, which is usually the case in such transactions. The previous cases decided by this Court have all arisen between the mortgagor and mortgagee in the mortgage that was foreclosed. This, however, is between the original mortgagee and a subsequent mortgagee of the same lands. ¥e pointed out in the case of Bidwell v. Whitney, 4 M. R., p. 89, the various methods of relief open to even a mortgagor who had suffered a foreclosure to pass without objection, where the excessive amount claimed was in pursuance of his own express stipulations. A subsequent incumbrancer cannot be in a worse position. This foreclosure statute, it is true, makes no provision for notice being given to subsequent in-cumbrancers, other than such as is conveyed to them through the one published in the newspapers. However we may disapprove of the wisdom of such a provision, there can be very little doubt of the power of the Legislature to declare such a notice¡ sufficient, and make it conclusive on all subsequently interested, and less doubt that such was the intention in this particular statute. It is expressly declared by section 17, that the conveyance made on the sale “shall be an entire bar of all claim or equity of redemption of the mortgagor, his heirs and representatives, and of all persons claiming under him or them by virtue of any title subsequent to such mortgage.” Language could not be more explicit, and it can receive but one construction. In the cases of Bidwell vs. Whitney, 4 M. R., 76, and Banker vs. Brent., Id. 521, the mortgagors sought a recovery of money from the mortgagees, under circumstances which involved the repudiation of their express stipulations, which stipulations had been acted upon by the mortgagees, and such action acquiesced in. The mortgages were in all respects regular. The relief sought was, of course, denied, as inappropriate and inequitable. In the case at bar, the proceedings on the part of the mortgagee, who foreclosed, were irregular and oppressive. He arbitrarily and wantonly claims a sum due about twice as great as the true sum. This, in itself, would be sufficient to set [249] aside tbe sale. Annan vs. Spencer, 4 M.R., 542. We have always beld that a mortgagee should state, with substantial accuracy, the amount due at the date of the notice, and that in doing so he might, of course, compute such amount upon any basis of calculation justified by the terms .of the note, and that a mortgagor who sought relief against penal or oppressive stipulations in the note, must urge his defence without delay, or be considered to have waived it. It is true in the case of Bidwell vs. Whitney, we treat, the foreclosure, by way of illustration, upon the same terms as a suit at law or in equity, and so far as the mortgagee keeps within the terms of his power, such illustration and position are strictly correct. But when the mortgagee acts entirely outside the power conferred upon him, his acts can bind no one, and no waiver can accrue. In this case, viewing it upon the complaint alone, as we are obliged to do, there is no pretence for the claim made by the mortgagee under his power, and the act is, therefore, unauthorized, and without binding force. Whereas, in the cases cited from 4 Mwmesota Reports, the claims were strictly within the terms of the power, and, consequently, binding, unless relieved against by a proper tribunal. The second mortgagee does not seek to set aside the sale, as he, perhaps, could have done, but desires to redeem the land by paying to the mortgagor, who purchased it in, the sum actually due to him. Not being able to ascertain with certainty the amount due, he pays the whole amount, protesting against the excess, and brings his action to recover back all over the sum actually due, alleging it to be $199 20. He states every fact necessary to show that the mortgagee has violated the power of sale contained in the mortgage, and through such means extorted money from him which he was in no way entitled to. We think he can recover.it back.. The judgment is affirmed.