Carilla v. Hersey

• Decision Date: 29 December 1937
• Parties: CARILLA v. HERSEY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

299 Mass. 139

12 N.E.2d 68

CARILLA

v.HERSEY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 29, 1937.

Suit in equity by Carmella Carilla against Sumner D. Hersey and others. From interlocutory and final decrees entered pursuant to orders therefor, plaintiff appeals.

Affirmed.Appeal from Superior Court, Suffolk County; F. T. Hammond, Judge.

D. J. Lucey, of Boston, and P. J. Powilatis, for plaintiff.

F. I. Rose, of Boston, for defendant.

COX, Justice.

About June 1, 1936, the defendant Hersey gave the plaintiff a written lease of the premises at 505 Old Colony Avenue, Dorchester District, in Boston. The term of the lease was for three years with a renewal privilege for two years and, among other things, the lessor agreed that he would not sell the premises without first offering them to the plaintiff on as favorable terms as to price and payment as might be offered by any other prospective purchaser. About July 22, 1936, Hersey conveyed the premises to the defendant Hettinger who was his straw or nominee. Upon learning of this conveyance, the plaintiff brought a bill in equity, which is not before us, against Hersey and Hettinger, seeking to have her rights determined under the lease as well as the question of the ownership of certain buildings which she had erected on the premises. Hersey bought the premises in question about January 2, 1936, five months prior to the lease to the plaintiff, and at the time he acquired title he gave the defendant Kreuzer a good and valid second mortgage on the premises for $1,500, which sum was applied by Hersey to the purchase price of the property. The mortgage contained a provision whereby the mortgagor and those holding his estate covenanted and agreed that any building and/or improvements thereafter erected or placed on the land were to become a part of the premises and were to be included in the mortgage and covered by it. In October, 1936, Hersey being in default as to the terms of the second mortgage, as to payments of both principal and interest, Kreuzer instituted foreclosure proceedings and on December 14, 1936, the premises were sold thereunder to the defendant McCarthy, a straw or nominee of Kreuzer. The notice of foreclosure was published once a week for three consecutive weeks in a newspaper published in Boston, the advertisement appearing in at least one edition of the newspaper on each day of its publication, the first publication being more than twenty-one days prior to the day of sale. None of the defendants notified the plaintiff of the time, place or conditions of the foreclosure sale and they did nothing to prevent notice thereof reaching her. On one advertised day and hour of the sale, at 9:30 A. M. a duly licensed auctioneer placed his flag on the premises, read the published notice of sale, including the terms of sale, and asked for bids. At least six or seven persons attended the sale and there was considerable competitive bidding, the first bid being at $1,000 and the last at $2,700, which was the highest bid. The auctioneer accepted this bid, which was made by the defendant McCarthy, and declared the real estate sold to him. The latter thereupon handed the auctioneer his check for $500, the amount required by the notice of foreclosure, intending to comply with the terms of the sale, whereupon another bidder, who had bid $2,600 for the property, protested the acceptance of the check on the ground that the notice required the payment to be in cash, and he then offered the auctioneer $500 in cash with the request that his bid of $2,600 be accepted and the property be declared sold to him. The auctioneer refused to accept the $500 in cash and to declare the property sold for $2,600, and thereupon declared the sale adjourned until 10:15 A.M. of the same day on the premises, at which time and place he asked those present, including the person who previously had bid $2,600, for bids in excess of $2,700, and, receiving no such bid, again accepted the bid of $2,700 made by McCarthy and again declared the property sold to him. McCarthy thereupon paid $500 in cash to the auctioneer and on the same day paid him the balance of the purchase price and received a good and valid mortgagee's foreclosure deed from Kreuzer which had been recorded. McCarthy now holds title to the land, which is registered, subject to a first mortgage. As a result of the foreclosure and the resultant litigation Kreuzer will have expended $3,149. During the hearing before the master, Kreuzer expressed a willingness to give the plaintiff a deed of the premises if she would pay him $3,200 within forty-eight hours. The plaintiff was able to pay this sum within the time specified but did not pay or offer to pay, and never has. At the same time that Kreuzer made this offer he stated that if the plaintiff did not purchase the property, he was willing to give her a lease of the premises upon the same terms and conditions as set forth in the Hersey lease, provided she requested such lease within forty-eight hours. The plaintiff has never requested such a lease. There was no collusion or conspiracy on the part of the defendants or any of them to foreclose the mortgage held by Kreuzer for the purpose of ‘wiping out’ the plaintiff's lease or for any other purposes detrimental to the plaintiff or her interest in the real estate. Kreuzer foreclosed his mortgage in good...