Brown v. Wentworth

• Decision Date: 01 March 1902
• Citation: 62 N.E. 984,181 Mass. 49
• Parties: BROWN v. WENTWORTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

181 Mass. 49

62 N.E. 984

BROWN v. WENTWORTH.

Supreme Judicial Court of Massachusetts, Essex.

March 1, 1902

COUNSEL

J. J. Flaherty, J. F. Quinn, and W. H. Twohig, for appellant.

H. P Moulton and F. V. Wright, for appellee.

OPINION

HOLMES. C.J.

This is a bill to redeem land from two mortgages. It was dismissed by the judge of the Superior Court who tried the case, and it comes here by appeal. The judge found that the mortgagee acted in good faith and with reasonable regard for the rights of the mortgagor, and that the property was fairly sold and brought a fair price. Of course these findings, so far as they depend on oral testimony as to the conducting of the foreclosure, would not be disturbed except upon strong reasons. We see no ground for doubt that the findings were right, subject to the questions which we shall mention. Some comment is made upon an alleged refusal by the mortgagee to accept four hundred dollars (about the amount of the interest for one year, interest for more than two years being due,) if he would postpone the sale. But the mortgagee evidently regarded the suggestion as the talk of an irresponsible person, and very probably was right. The money was not produced. There is no indication of any animus on his part other than an old man's weariness and desire to get rid of a mortgage which was always in arrears. He put the foreclosure into professional hands, and relied upon those whom he employed to see that all proper steps were taken. Cranston v. Crane, 97 Mass. 459 464, 93 Am. Dec. 106.

In the first place, the plaintiff claims a right to redeem as matter of law because the bill, although filed after the sale, was brought before the conveyances were executed to carry it out. We are of opinion that she has no such right. Unless there was some defect in the proceedings, her rights were gone when the contract was made. This, we apprehend, would be so apart from St. 1888, c. 433, (see Way v. Mullett, 143 Mass. 49, 5o, 8 N.E. 881; Pub. St. c. 181, § 21,) and we see no reason to doubt that that statute means that, even before the sale, if the property has been advertised, the filing of a bill to redeem shall not interrupt the mortgagee's right to proceed to conclude the plaintiff's rights, unless the amount due is paid into court or an injunction issues. See Way v. Mullett, 143 Mass. 55, 58, 8 N.E. 881. The plaintiff failed to pay the money into court and no injunction issued.

Next it is said that the advertisement was bad, because it described the premises as woodland and did not mention that there was a somewhat well known hotel, the Winnepoyken House, upon them and also because the paper seleted was not a proper one. The first mentioned fact undoubtedly would be a matter to be considered, if strictly true, although it hardly of itself and necessarily would invalidate the sale. But it is not strictly true. The sale under the first mortgage is announced to take place in front of the hotel situated on the premises. As to the newspaper the facts are these. The one selected was the Wenham-Hamilton Times, and it was chosen in order to comply with Pub. St. c. 181, § 17; St. 1882, c. 75, under the impression that it was published in the town of Hamilton, where the mortgaged property was situated. Probably it was a mistake to suppose that the paper was published there in such sense as to make the choice of the paper compulsory, since it was a many headed publication like that dealt with in Rose v. Bank, 165 Mass. 273, 43 N.E. 93, and seems to have had its home in Beverly. But the choice was made in good faith by the agent to whom the matter was intrusted. The paper was published in the county, which is the only requirement of the mortgage and the alternative requirement of the statute. In its various forms it circulated in the town of Hamilton and the vicinity, and, although it is said that it does not appear that it was published at the proper times...