Briggs v. Briggs
| Decision Date | 06 September 1883 |
| Citation | 135 Mass. 306 |
| Parties | Benjamin J. Briggs v. Alfred Briggs |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued October 17, 1882 [Syllabus Material]
Plymouth. Bill in equity, filed February 4, 1881, to redeem a parcel of land in Rochester, in this county, from two mortgages. The case was referred to a master, whose report was in substance as follows:
The first mortgage was made on December 9, 1875, and was from the plaintiff to the defendant, of one undivided half of the land, for $ 600, payable on demand, with interest at the rate of six per cent. The plaintiff's wife released dower. The second mortgage was dated January 15, 1877. It was from the plaintiff to John T. Atsatt and son, and was a mortgage of the whole farm for $ 150, payable in three months, with interest at the rate of fifteen per cent until the principal should be paid. The wife did not release her dower. On September 20, 1877, John T. Atsatt and son assigned this mortgage to the defendant. Some time afterwards, it was discovered that this assignment was not under seal, and another assignment was made by the same persons to the defendant, on March 4, 1879. No part of the principal or interest of either mortgage has been paid.
An entry was made to foreclose the first mortgage on February 26, 1879, and the certificate was duly recorded on February 28, 1879. Another entry to foreclose the second mortgage was made on April 10, 1879, and the certificate was duly recorded on April 12, 1879. Prior to these entries, and on or about January 1, 1878, the defendant made a demand on the plaintiff for payment of both mortgages.
The defendant advertised the farm for sale, for breach of the condition of the first mortgage, in the Taunton Daily Gazette, a newspaper published in Taunton, in the county of Bristol. The sale was advertised to be on March 12, 1879. The notice was published on March 1, 3 and 10, 1879.
The defendant advertised the farm for sale again, for breach of the condition of the second mortgage, in said Taunton Daily Gazette. The sale was advertised to be on April 23, 1879. The notice was published on April 11, 14 and 21, 1879.
A sale was made on March 12, 1879, and the defendant was the purchaser for the sum of $ 350. Another sale was made on April 23, 1879, and the defendant was the purchaser for $ 350.
The plaintiff sought to have these sales set aside, because the defendant in making them acted fraudulently, because twenty-one days' notice was not given, as required by the St. of 1877, c. 215, and because the defendant did not use such care and diligence to protect the rights of the mortgagor as are required of a mortgagee.
At the time these sales were made no newspaper was published in the town of Rochester, and the St. of 1877, c. 215, was not applicable to the case. Each mortgage required the mortgagee to give "notice of the time and place of sale once in each of three successive weeks in some newspaper printed in the county of Bristol." This was done before each sale.
At the date of the first sale the plaintiff was living in Marion, in Plymouth county, and the defendant in Norton, in Bristol county; and at the date of the second sale the plaintiff was living in Rochester and the defendant in Norton.
The Taunton Daily Gazette had little or no circulation in the town of Rochester in March and April, 1879. Before each sale the defendant posted a notice cut from the Gazette on the corner of the barn on the mortgaged premises; one on a guideboard at North Rochester, some three miles distant; one in a store in Precinct, some ten or twelve miles distant; one near the Bell Schoolhouse in Lakeville; two on the road between Taunton and Norton; and two in Norton. He also informed a number of persons in Norton and Attleborough of the times and places of the sales, and he also notified a few persons in Rochester.
The value of the farm which was mortgaged was, in March and April, 1879, $ 1500; of one undivided half, $ 650; and of an undivided half without a release of the right of dower, $ 500.
The defendant in giving the notices and making the sales did not intend to defraud the plaintiff, and there was no actual fraud on his part.
At the sale on March 12, 1879, but few people attended, and there was but one bid besides that of the defendant; and, when the defendant found that the publication and notices given by him produced this result, it was his duty to adjourn the sale and by proceeding with it he failed to protect properly the rights and interests of the mortgagor.
At the sale on April 23, 1879, there was about the same...
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