Briggs v. Hall
| Decision Date | 23 July 1889 |
| Citation | 16 R.I. 577,18 A. 177 |
| Parties | BRIGGS v. HALL et al. |
| Court | Rhode Island Supreme Court |
In equity. Demurrer to bill to set aside deed.
Stephen A. Cooke, Jr., and Robert W. Burbank, for complainant. Edward D. Bassett, for respondents.
The defendants in this suit are William H. Hall, George O. Calef, and William F. Macomber. The bill alleges that on July 27, 1882, Calef sold and conveyed to the complainant certain real estate described in the bill; that the same day the complainant mortgaged said real estate with power of sale to Calef and to Hall, to secure the payment of his note for $2,400; that subsequently Hall assigned his interest to Calef, and Calef reassigned the same to Hall; that afterwards Calef and Hall advertised the estate for sale under the power, and on September 2, 1887, had the same put up at public auction, and struck off to Macomber, and that the same was conveyed to Macomber on the same day, and by said Macoinber conveyed to Calef and Hall. The bill alleges fraud in advertising, and in the sale, and prays that the deed from Hall and Calef to Macomber, and the deed from Macoinber to Hall and Calef, may be decreed to be void and of no effect, and for general relief. The defendants have demurred to the bill, and for cause of demurrer show that the complainant does not in and by his bill offer to redeem the mortgage therein mentioned. There are cases which hold that, where a person having an interest in an equity of redemption wishes to test the validity of a sale under a power is a mortgage, his remedy is by bill to redeem, not by bill to set aside the sale; and that this is the remedy, even though it be shown that the mortgagee has used the power inequitably, and unfairly bought the property himself. Schwarz v. Sears, Walk. Ch. 170; Tuthill v. Lupton, 1 Edw. Ch. 564. But in Meyer v. Insurance Co., 5 Mo. App. 245, these cases were disapproved, and in that case a bill praying to have a mortgage sale under a power set aside was sustained at the suit of the mortgagor's assignee for the benefit of creditors, though the bill contained no offer to redeem. The court, in giving its opinion, uses the following language: "The mortgage debtor has no right to compel his creditor to take the mortgaged property at its actual value on account of the debt, but he has a right to insist that the power of sale shall be exercised in strict accordance with law, and that there shall be no abuse of the trust; and of this right he cannot...
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Hathorn v. Butler
...109 Ill. 349; Abbott v. Peck, 35 Minn. 499; Hull v. King, supra; Bausman v. Kelley, supra; Meyer v. Jefferson, 5 Mo.App. 245; Briggs v. Hall, 16 R.I. 577; 2 Jones, Mort. 1921. It would be inequitable to require appellant to pay a debt she does not owe or to redeem as a condition for relief.......
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Axman v. Smith
...have been set aside." That opinion was cited, quoted from at length, and commended by the Supreme Court of Rhode Island in Briggs v. Hall, 16 R.I. 577, 18 A. 177. And in the following cases cited by counsel for appellant his brief, re-sales were ordered when in fact there was no offer to re......
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Kebabian v. Shinkle
...sale is allowed to stand, it has cut him off from this privilege. As to the second cause of demurrer the complainant cites Briggs v. Hall, 16 R. I. 577, 18 Atl. 177, where this court held that a mortgagor might maintain a bill to annul a fraudulent or unfair sale of the mortgaged premises w......