Chartrand v. Newton Trust Co.
| Decision Date | 30 December 1936 |
| Citation | 296 Mass. 317,5 N.E.2d 421 |
| Parties | CHARTRAND et al. v. NEWTON TRUST CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Suit in equity by Jules P. Chartrand and others, executors of the will of Michel A. Chartrand, deceased, against the Newton Trust Company. From a final decree dismissing the bill entered by order of single justice, the plaintiffs appeal.
Affirmed.
Appeal from Superior Court, Middlesex County; Williams, Judge.
F. M Carroll, of Boston, for appellants.
A. E Whittemore, of Boston, for appellee.
This is a bill in equity to set aside a mortgage foreclosure of certain real estate in Newton, Massachusetts, on the ground that the sale was improperly conducted. It is before this court on the plaintiffs' appeal from a final decree of the Superior Court dismissing the bill with costs, pursuant to findings, rulings and order of the trial judge.
The testimony warranted the finding of the following facts: The plaintiffs are executors of the will of Michel A. Chartrand, who died on December 4, 1934. The defendant is a Massachusetts banking corporation having its place of business in the city of Newton. On October 14, 1924, said Chartrand executed a mortgage to the defendant in the sum of $10,000, upon certain real estate, in the city of Newton, consisting of approximately thirty-seven thousand square feet of land, upon which is a brick and stucco residence of fourteen rooms.
The trial judge found and ruled ‘ that there was a valid foreclosure sale properly conducted in good faith and, as a matter of fact and law, there is no reason for this Court's upsetting the sale.'
There was a conflict in the evidence concerning the circumstances under which the sale took place, but there was ample evidence of the following facts: In November, 1935, the plaintiffs, as executors, obtained a license from the Probate Court of Middlesex County allowing them to sell the property in question for $11,000, or for a larger sum. At this time the amount of the mortgage on the property was $9,250. The plaintiffs were unable to effect the sale they were licensed by the Probate Court to make. On November 27, 1935, ‘ the mortgage in question was in default because of failure to pay interest and to pay the municipal taxes for [the year] 1935,’ and on that date the defendant mortgagee caused to be published in the Newton Graphic, a newspaper published in the city of Newton, a notice of the sale of the property to be held on December 26, 1935, at 12:30 p. m. on the premises. By this notice the purchaser was required to make a cash deposit of $500 at the time and place of sale. Commencing on December 20, 1935, the defendant caused to be published in the same newspaper a new notice of sale of the mortgaged premises, to be held on January 15, 1936. This notice stated that a cash deposit of $1,500 would be required. Copies of the notice were sent to the plaintiffs, to their attorney, and to fifteen other persons who had property in the neighborhood. On January 15, 1936, a representative of the defendant and the auctioneer appeared on the premises at the announced time, and the auctioneer adjourned the sale for one week-to January 22, 1936, at 12:30 p. m. on the premises. While there was evidence that the defendant desired to postpone the sale on January 15, 1936, because of the illness of the attorney who regularly handled foreclosures for the defendant, there was also evidence that at that time no representative of the plaintiffs nor bidders appeared. On the conflicting evidence the trial judge found: ‘ Representatives of the defendant mortgagee were present on the premises at the time the sale was to take place, and the auctioneer, properly and in accordance with law, adjourned the sale to January 22, 1936, at the same time.’ Subsequently, one of the plaintiffs, on January 16, 1936, was informed of the postponement and of the date (January 22, 1936) on which the sale was to be made. On January 22, 1936, the ground in the vicinity of the premises was covered with snow, but snow had been removed from the roads and sidewalk and the day was fair. Shortly before the time appointed for the sale, representatives of the defendant and the auctioneer appeared on the premises and the auctioneer's flag was hung on a gate post of the entrance leading to the house. No one other than the above mentioned persons appeared at the time appointed. A representative of the defendant bid $6,000 for the premises, and they were sold to him.
An officer of the bank, with long real estate experience in Newton, testified, subject to the plaintiffs' exception, that the property was reasonably worth at the time of the foreclosure and had a market value of $6,500 to $7,000. The auctioneer testified, without objection by the plaintiffs, to the effect that he was a real estate broker in said Newton and had been such for more than ten years; that he was familiar with real estate values in Newton; and that in his opinion the property was worth $6,000. Two of the plaintiffs testified that the property was worth between $17,000 and $18,000. The trial judge found that ; that the price obtained ‘ was fairly adequate’ ; and that while there was a heavy fall of snow on the ground on January 22, 1936, there was no reason to believe that other bidders would have been present if conditions had been better, there having been no other bidders present on January 15, 1936, when the weather was fair. Compliance with the formalities of publication and notices on each date was admitted by the plaintiffs.
The arguments of the plaintiffs are directed mainly to establishing the proposition that various circumstances in connection with the sale are sufficient to show that it was improperly conducted. The principles of law applicable to the case at bar are well settled. Thus a mortgagee, in exercising a power of sale contained in a mortgage, is bound to act...
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