DesLauries v. Shea
| Decision Date | 28 March 1938 |
| Citation | 13 N.E.2d 932,300 Mass. 30 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | JOHN L. DESLAURIES v. DENNIS H. SHEA & others. |
November 4, 5 1936, March 7, 1938.
Present: RUGG, C.
J., FIELD, DONAHUE LUMMUS, QUA, DOLAN, & COX, JJ.
Conspiracy. Actionable Tort.
Mortgage, Of real estate: foreclosure. Practice, Civil, Judgment, Death of party.
In the absence of evidence of a peculiar power of coercion possessed by a bank mortgagee of real estate, and purchasers at a sale in foreclosure of the mortgage, or of any other exceptional circumstances, an action of tort for conspiracy could not be maintained by the mortgagor against them whether the foreclosure was lawful or unlawful.
A finding, at the trial of an action by a mortgagor of real estate against the mortgagee and the purchaser at a foreclosure sale, that the sale was not conducted in good faith and with due diligence and was unlawful would not have been warranted by evidence that there was a substantial disparity between the sale price, the value of the real estate and a price which, by an agreement which had expired nearly three months before the sale, the purchaser had agreed to pay the mortgagor for a clear title; that the sale took place at a summer resort in December; of lack of notice of the sale to the second mortgagee and creditors, one of whom had requested notice; of the fact that the mortgagee's attorney in the foreclosure proceedings also had acted for the purchaser as to the title in connection with the previous agreement for sale, and had disapproved the title; that the purchase price at the foreclosure sale was just above what the mortgagee thought was due him; and that, after the sale, the purchaser also paid the mortgagee an amount still due him.
The death of the plaintiff in an action after the ordering of a verdict against him and while his exceptions were pending in this court, did not cause the action to abate even if it was upon a claim which did not survive, but, upon the exceptions being overruled, judgment was ordered entered nunc pro tunc as of a date previous to the death; and there was no necessity to grant the plaintiff's administrator leave to appear and prosecute the action.
TORT. Writ in the Superior Court dated April 7, 1931. The trial was before Brown, J. The plaintiff having died while the case was under advisement by this court, the administratrix of his estate filed a motion in this court for leave to appear and prosecute, and the defendants filed a motion to dismiss the action.
The case was argued at the bar in November, 1936, before Rugg, C.J., Field, Donahue, & Qua, JJ., and in March, 1938, before Rugg, C.J., Field, Lummus, Dolan, & Cox, JJ.
H. Snyder, (S.
L. Bailen with him,) for the plaintiff.
R. B. Owen, (E.
R. Anderson with him,) for the defendants.
This action of tort for conspiracy to defraud the plaintiff of his equity in certain real estate in Scituate was brought in the Superior Court against the Cohasset Savings Bank, the mortgagee thereof, Dennis H. Shea and William H. Harney. The judge submitted to the jury a special question "as to what the fair market value of this property was at the time of foreclosure, December 14, 1929," and the jury answered $25,500. The judge then directed a verdict for the defendants and reported the case for the determination of this court in accordance with an agreement of the parties that, if the direction of the verdict was error, judgment should be entered for the plaintiff in an amount depending upon the decision by this court of certain questions of law relating to damages, but that, if the direction of the verdict was not error, judgment should be entered thereon.
First. There was no error in the direction of a verdict for the defendants.
These facts are undisputed: The plaintiff and his wife took title to the premises in question in 1923 as tenants by the entirety. October 27, 1925, they gave a first mortgage to the defendant bank for $15,000. December 28, 1926, the plaintiff was adjudicated bankrupt. November 4, 1927, he was discharged. July 13, 1929, the plaintiff and his wife entered into an agreement with the defendants Shea and Harney for the purchase and sale of such real estate for $24,500, the premises "to be conveyed on or before August 12th, 1929 by a good and sufficient quit claim deed . . . conveying a good and clear title to the same free from all incumbrances." The time for the performance of the agreement was extended three times. The final extension terminated September 28, 1929. The defendant bank foreclosed its mortgage by a sale held on December 14, 1929, at which the bank and the defendants Shea and Harney were the only bidders. Shea and Harney purchased the real estate for $3 "more than the amount which the Treasurer of the Bank supposed was due to the Bank on the first mortgage." There was evidence that the sale price was $16,815.
It must be taken that the verdict was directed by the judge with the declaration before him and in view of its averments. His action cannot be reversed unless the evidence considered in connection with the special finding of the jury -- which was warranted by the evidence -- warranted a verdict for the plaintiff under the declaration. Brasslavsky v. Boston Elevated Railway, 250 Mass. 403 , 404. Aldworth v. F. W. Woolworth Co. 295 Mass. 344, 345. The declaration alleges in substance a conspiracy between the defendant bank and the other defendants to obtain for such other defendants title to the plaintiff's real estate at a price substantially lower than the price fixed by the agreement of purchase and sale and also substantially lower than the fair value of such real estate, through the medium of an unlawful foreclosure sale. Clearly a finding was warranted that the price at which title to the real estate was obtained by these other defendants was substantially lower than the price fixed by the agreement and than its fair value. We pass without discussion the allegation in the declaration that these defendants "well knew that the price for which they had agreed to purchase said real estate was considerably lower than a fair market value thereof, because of the fact that strict necessity and demands for the payment of the mortgage by the Defendant Cohasset Savings Bank made it imperative and compelling that said property should be sold by the Plaintiff even at a sacrifice," for the plaintiff properly does not contend that he sustained a legal injury by reason of entering into the purchase and sale agreement in the circumstances disclosed by the evidence.
There can be no independent tort for conspiracy unless in a situation "where mere force of numbers acting in unison or other exceptional circumstances may make a wrong." Caverno v. Fellows, 286 Mass. 440 , 444. McCarthy v. Hawes, 299 Mass. 340 , 344. And in order to prove an independent tort for conspiracy upon the basis of "mere force of numbers acting in unison" it must be shown that there was some "peculiar power of coercion of the plaintiff possessed by the defendants in combination which any individual standing in a like relation to the plaintiff would not have had." Cummings v. Harrington, 278 Mass. 527 , 530. See Johnson v. East Boston Savings Bank, 290 Mass. 441 , 445-448. See also Willett v. Herrick, 242 Mass. 471, 478-480; Loughery v. Central Trust Co. 258 Mass. 172 , 175-176. The evidence in this case shows no peculiar power of coercion possessed by the defendants in combination which would not ordinarily have been possessed by mortgagees and purchasers at foreclosure sales. We need not attempt to define the "exceptional circumstances" which might furnish a basis for an independent action of tort for conspiracy. Compare Loughery v. Central Trust Co. 258 Mass. 172 , 176. No such exceptional circumstances are shown. If the foreclosure was itself lawful there can be no independent action of tort for conspiracy. Antoine v. Commonwealth Trust Co. 266 Mass. 202 , 206. Harm resulting to the plaintiff from the exercise by the bank, by legal means, of its legal right to foreclose would not create a cause of action. See Willett v. Herrick, 258 Mass. 585 , 604. Such a foreclosure by the bank would not be "an intentional invasion of a legally protected interest without legal justification," which would create liability. See Ross v. Wright, 286 Mass. 269 , 271, and cases cited. On the other hand, if the foreclosure was unlawful the gist of the action was not conspiracy but the unlawful foreclosure and damages resulting therefrom. The allegation of conspiracy does not change the nature of the cause of action. It is at most an allegation that the alleged wrongful acts were done jointly by the defendants. Randall v. Hazelton, 12 Allen, 412, 414. Bilafsky v. Conveyancers Title Ins. Co. 192 Mass. 504 , 506. Farquhar v. New England Trust Co. 261 Mass. 209 , 214. Antoine v. Commonwealth Trust Co. 266 Mass. 202, 206. Caverno v. Fellows, 286 Mass. 440 , 443-444. The action, therefore, cannot be maintained as an action of tort for conspiracy.
The evidence did not warrant a finding that the foreclosure was unlawful. It is not disputed that there was a breach of the condition of the mortgage prior to the events relied on by the plaintiff to show wrongdoing on the part of the defendants. Compare Rogers v. Barnes, 169 Mass. 179 . And it could not have been found that there was any binding agreement between the parties to the mortgage that it would not be foreclosed. See Sandler v. Green, 287 Mass. 404 , 408. The action must be maintained, if at all, on the ground that the foreclosure was unlawful because the foreclosure proceedings were not conducted in a legal manner. Such a finding could not have been made on the evidence.
So far as appears there...
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