Dexter v. Shepard

• Decision Date: 07 May 1875
• Citation: 117 Mass. 480
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Alonzo Dexter v. Otis Shepard & others. Same v. Same. Same & another v. Same

117 Mass. 480

Alonzo Dexter v. Otis Shepard & others.

Same v. Same.

Same & another v. Same

Supreme Court of Massachusetts

May 7, 1875

Argued November 19, 1875 [Syllabus Material] [Syllabus Material]

Suffolk. Three bills in equity, to redeem three parcels of land in that part of Boston formerly Roxbury, from mortgages made by Alonzo Dexter to Otis Shepard. Hearing before Wells, J., who made a report in substance as follows:

The mortgage in the first and second case was to secure the sum of $ 2500, and, in the third case, the sum of $ 900. Each mortgage contained a power of sale in the usual form, providing that the mortgagee, upon any default in the performance of the conditions, might sell the granted premises "by public auction, first publishing a notice of the time and place of sale, once each week for three successive weeks, in one or more newspapers published in said Boston." "The said grantee, or his executors, administrators or assigns, or any person or persons in their behalf, may purchase at such sale."

The mortgagor did not pay the first two installments of interest, and on October 16, 23 and 30, 1869, the mortgagee advertised the land for sale, by separate advertisements for each mortgage, in the Suffolk County Journal, a weekly newspaper published in Boston, appointing November 5, 1869, at three o'clock p. m., as the time for the sale.

At the time appointed for the sale, very few persons were present; and there having been some negotiations for adjustment, an adjournment was made, announced at the place of sale, to November 19. The negotiations proving ineffectual, notices of the adjourned sale were published in the Boston Daily Advertiser, on November 17 and 18, as follows: "By F. D. Osgood, real estate auctioneer and agent; office, No. 1 Soren's Block, Boston Highlands. Postponed mortgagee's sale of four houses, being in a block of six, and two lots of land, on Grove Hall Avenue, nearly opposite Moreland Street, Boston Highlands. On Friday, November 19, at three o'clock, p. m. Said houses contain twelve conveniently arranged rooms, and are in every respect desirable for residences. They will be sold without reserve, as also two lots of land adjoining the aforesaid houses.

"By order of Otis Shepard, mortgagee."

Notice was also given by one hundred and twenty-five posters or handbills, in large type, (whose contents were not shown at the hearing,) which were distributed in public places a few days before the sale. The sale of each of the three parcels was made on November 19, a reasonable number of persons, including the plaintiff Dexter, being present, and the sale being properly conducted in all respects, unless the objections herein specified shall be held to be such as to render it invalid.

The plaintiff sought to impeach the validity of the sale on the following grounds: 1. That the original notice was not published the requisite length of time before the time appointed for the sale. 2. That the power of sale did not authorize an adjournment; and that such adjournment, and the sale in pursuance thereof, were invalid. 3. That the notice of the adjourned sale was erroneous in fact as to the description of the property, and such as to mislead persons who might otherwise have become purchasers. 4. That the provision allowing the mortgagee to become a purchaser is contrary to law and void; and that the sales under which he became interested in the purchase were void for that reason.

The judge found that the adjournment was reasonable and proper under the circumstances, if within the authority conferred by the power; and that the plaintiff Dexter, although requesting that the sale should not take place on November 5, and present at the sale November 19, did not consent to the sale nor intend to waive any legal rights.

The property of Dexter consisted of a brick block of five houses and two vacant lots. Four of the houses and the two vacant lots were offered for sale at the same time. There was no other block of five or six houses in the vicinity; but there was a separate house in a line with Dexter's, and ten feet from it, on the same street.

Previously to the sale, Otis Shepard requested his brother, Charles A. Shepard, one of the defendants, to protect his interests as mortgagee by bidding enough to cover the amount due and expenses of sale. In pursuance of this request, the parcel for which the first bill is brought was bid off by Charles A. at $ 2850, and subsequently conveyed to him by Otis Shepard. Charles A. conveyed it for the same price to the defendants Horace L. Shepard and W. R. Chester, to whom Otis Shepard had negotiated a sale of the same. The purchase money was paid directly from them to Otis Shepard, Charles A. never having had any real interest in it. Horace L. Shepard and Chester subsequently conveyed in mortgage to the defendant Elizabeth Hutchins, and the equity to the other defendant, Prentiss, neither of whom had any knowledge or notice of any ground of invalidity in the sale, and were purchasers for value and in good faith. There was no evidence to charge H. L. Shepard and Chester with notice, unless the fact of negotiating their purchase with Otis Shepard constitutes such notice.

The parcel named in the second case was bid off by the defendant Edward McKechnie, who was also requested by Otis Shepard to attend the sale and bid the amount of the mortgage and expenses. Upon his expressing doubts whether the property was worth so much, Otis Shepard said that he would share with him the profit or loss of the purchase, and of finishing the house for resale. The property was thereupon bid off by McKechnie for $ 2850; and on the same day, but after the sale, an agreement in accordance with their previous conversation was drawn up and signed by them; and the property was conveyed to McKechnie. The building on the premises was then in an unfinished state, requiring from $ 300 to $ 800 to complete it. McKechnie proceeded to finish it, and sold it when finished to one Miles, not made a party to the bill, who sold it to the defendant Hines. By mutual arrangement, McKechnie conveyed it directly to Hines May 27 1870, the consideration being $ 4200. McKechnie testified that he...