Charles A. King v. Sarah A. Bronson, Administratrix, &Amp; Another

• Decision Date: 07 March 1877
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Charles A. King v. Sarah A. Bronson, administratrix, & another

122 Mass. 122

Charles A. King v. Sarah A. Bronson, administratrix, & another

Supreme Court of Massachusetts

March 7, 1877

Argued October 5, 1876 [Syllabus Material] [Syllabus Material]

Worcester. Bill in equity, filed April 20, 1876, against Sarah A Bronson, as administratrix of the estate of Alfred R. Bronson, and Charles W. Wood, to redeem land in Worcester from a mortgage.

The case was heard by Devens, J., who, at the request of the defendants, reported it to the full court as follows:

On April 1, 1873, the plaintiff mortgaged the estate to Alfred R. Bronson to secure the payment of $ 2000 payable on demand, with interest at the rate of eight per cent. per annum, payable semi-annually. The mortgage contained the following condition: "And provided also, that at any time after sixty days of a breach of any of the foregoing conditions, the grantee, his executors, administrators or assigns may sell and dispose of the granted premises, with all the improvements that may be thereon, at public auction; such sale to be on or near the premises, without further notice or demand, except giving notice of the time and place of sale once at least in each of three successive weeks in one newspaper printed in the county of Worcester; and in his or their own names or as the attorney of the grantor or his heirs or assigns, for that purpose by these presents duly authorized, convey the same or any part thereof absolutely and in fee simple to the purchaser or purchasers accordingly, and, out of the money arising from such sale, to retain all sums, then secured by this deed (whether then or thereafter payable) together with interest and all costs of any suit either on said note or mortgage and all expenses incurred in such sale; paying the surplus, if any, to the grantor or his assigns, and such sale shall forever bar the grantor and all persons claiming by or under him from all right and interest in the premises, at law or in equity. It being mutually agreed that the grantee or his assigns may purchase at said sale, and that no other purchaser shall be answerable for the application of the purchase money."

On March 7, 1874, the plaintiff sold the estate to Joseph Cartis and conveyed the same by warranty deed, but excepted from the covenants against incumbrance and warranty the mortgage aforesaid, and the amount of that mortgage was deducted by Curtis from the consideration of the conveyance; but in the deed Curtis did not expressly assume and agree to pay the mortgage.

On May 29, 1874, Curtis conveyed the same estate to Charles Newton by deed of warranty, the grantee therein agreeing to assume and pay the mortgage to Bronson and to save Curtis harmless therefrom, the amount of the same having been accounted for, as the deed recited, in the consideration. The mortgage to Bronson was excepted from the covenants of warranty and against incumbrances.

On June 21, 1875, Newton conveyed the estate, with other lands, to one Porter by warranty deed, and Porter assumed and agreed to pay the mortgages thereon, one of which was the mortgage from King to Bronson; and these mortgages were excepted from the covenant against incumbrances, but not from that of warranty.

On June 21, 1875, Porter, the then owner of the equity of redemption in the premises, mortgaged the same to Newton to secure the payment of $ 600 in two years from date, with interest at the rate of eight per cent. per annum, payable semi-annually. In this mortgage, Porter warranted the estate free from all incumbrances except a mortgage for $ 2000, meaning the mortgage from King to Bronson, and covenanted to warrant and defend the premises to Newton, his heirs and assigns, against the lawful claims and demands of all persons.

On June 23, 1875, Newton assigned the last named mortgage to Bronson, and in the assignment no mention was made of the mortgage from King, but it was well known to Bronson that it was a second mortgage on the estate before mortgaged to him by King.

Alfred R. Bronson died after the assignment of this mortgage, and the defendant, Sarah A. Bronson, was appointed administratrix of his estate.

Subsequently to the conveyance of the equity by King to Curtis, Alfred R Bronson had collected interest on the mortgage made by King from the successive owners of the equity, and had not called on the plaintiff; but in February, 1876, the interest being then overdue, the defendant Wood, who was agent for Sarah A. Bronson, met the plaintiff, made some inquiries of him as to where Newton was, informed him that the interest on the mortgage given by him was in arrear, that it ought to be paid or that something must be done about it. He did not otherwise demand the interest or inform him that, if not paid, the mortgage would be foreclosed.

On April 1, 1876, the administratrix proceeded to foreclose the mortgage made by the plaintiff, by advertising the property for sale, under the power contained in the mortgage, for breach of condition thereof, interest not having been paid for nine months. All the notices by advertisement required by the power of sale were duly given, unless such notices were required to state for what breach of condition the sale was made. The notices did not state what condition of the mortgage was broken. A few days before the time appointed for the sale, which was on April 19, 1876, a copy of one of the papers containing the advertisement of the sale was sent through the post-office to the plaintiff by the defendant Wood. It did not appear that the plaintiff saw either the...