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• Title: Brooks v. Bennett Et Al.
• Author : Supreme Judicial Court of Massachusetts
• Release Date : January 24, 1931
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 65 KB

Description

RUGG, C. J. This is a suit in equity for an accounting of the proceeds of the sale by foreclosure of a mortgage on real estate. The plaintiff was the holder of a fourth mortgage on certain real estate. Antecedent mortgages were a first mortgage to a savings bank in the sum of $1,200, a second mortgage written in the sum of $800 on which was actually due about $567, and a third mortgage in the sum of $200, the two latter being held by the defendant Bennett. In December, 1929, the defendant Bennett as the holder of the third mortgage began to exercise the power of sale therein contained by causing notice to be published according to law that the real estate would be sold on January 7, 1930, for breach of condition of the third mortgage, the premises being described in the advertisement as subject to the first mortgage and the second mortgage already described, and that the premises would be sold 'subject to any and all incumbrances, restrictions and interest on first and second mortgages.' The sale was held as advertised. The foreclosure deed executed by the defendant Bennett purported to convey the premises to the defendant Bagley for $2,200 subject to two mortgages, the first of $1,200 to the savings bank and the other of $800 to the defendant Bennett. The affidavit accompanying the deed set forth copy of the published notice of the sale by foreclosure, with the statement of the two encumbrances heretofore described, and stated that the mortgaged premises were sold by the auctioneer to the defendant Bagley for $2,200. At the hearing before the trial Judge testimony was introduced touching occurrences at the auction sale, and the facts were found to be as follows: One bid was made of $50 above the two antecedent mortgages, another of $150, and the third by the defendant Bagley for $250, which was the highest bid made, and the title was conveyed to him. He paid the amount of his bid. This finding was in the main in accordance with the testimony of the auctioneer as to what he said at the foreclosure sale and the form in which the bids were received. It follows from this finding that no one rightly could have been misled by what took place at the auction. In substance and effect the trial Judge found that this $250 was paid for the title conveyed by foreclosure of the $200 mortgage subject to the two earlier mortgages and the right to redeem the land thus conveyed from those mortgages. The Judge ruled upon the facts as thus found that the mortgagee who sold under power of sale subject to prior encumbrances was not estopped merely because of the erroneous recital of the consideration in the deed or in the affidavit of sale from showing the actual amount bid and paid at the sale. It was agreed that, if the view taken by the trial Judge was correct, there was no occasion for accounting, as the actual expenses of the sale exceeded the difference between the amount paid by the defendant Bagley and the amount of the third mortgage held and foreclosed by the defendant Bennett. Therefore a decree was entered dismissing the bill with costs. The plaintiff's appeal brings the case here. There is nothing in the plaintiff's contention, based on Equity Rule 6 (1926), to the effect that the answer of the defendants bound them to the proposition that the bid was $2,200 above the first and second mortgages and prevented them from showing by evidence what in truth took place at the auction sale. The answer was board enough to permit proof of such facts as were found by the trial Judge.

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