Gilson v. Nesson
| Decision Date | 04 March 1911 |
| Citation | 94 N.E. 471,208 Mass. 368 |
| Parties | GILSON v. NESSON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Clarence A. Bunker, for plaintiff.
Lee M Friedman, for defendant.
The finding for the plaintiff upon conflicting evidence disposes of the defense that, for a new consideration accepted by her and executed by the defendant, the plaintiff's intestate, who was the mortgagee, agreed to take the mortgaged property under foreclosure proceedings in satisfaction of the mortgage debt, and also establishes all material facts involved in the controversy upon which the right of the plaintiff to recover depended. American Malting Co. v. Souther Brewing Co., 194 Mass. 89, 80 N.E. 526. The mortgagee purchased the property at the sale and the defendant having advanced the expenses of foreclosure is to be credited with the purchase price, and only the balance of the indebtedness can be recovered in the present action. The actual sale was for $10,000. But as the deed and affidavit under the power of sale stated the consideration and the amount of the bid to have been $12,500, the defendant contends this sum must be credited, and the judge erred in refusing to rule that the affidavit could not be contradicted, and must be taken as true. If, as between the parties, the actual consideration of the contract may be shown although the recital in the deed of conveyance is different, so the affidavit is not conclusive, but is for the preservation of evidence showing compliance with the conditions of the power of sale. It would be a novel proposition for the defendant to assert that, if the sale had been for more than the amount named in the affidavit, he could not prove and be credited with the excess, or, if in fact a surplus had resulted, that the mortgagee would not have held the money to his use. The recitals, being evidentiary only, do not work a mutual estoppel, and may be contradicted by either the mortgagor or mortgagee. Rose v. Taunton, 119 Mass. 99, 100; Farquhar v. Farquhar, 194 Mass. 400, 405, 80 N.E. 654; Atkins v. Atkins, 195 Mass. 124, 127, 80 N.E. 806, 11 L. R. A. (N. S.) 273, 122 Am. St. Rep. 221; Brouillard v. Stimpson, 201 Mass. 236, 238, 87 N.E. 493.
It is further urged that by the acts of her agent at the sale, and by taking and retaining title in connection with a formal declaration in writing that she acquired the property for a price which was the highest accepted bid, although the decisive bid was much less, the intestate, by whose acts and conduct the plaintiff would be concluded, was estopped from taking a different position to the plaintiff's disadvantage and injury, or elected to be bound by the amount stated in the affidavit, or waived the right to rely on the final bid. A short answer to this contention would be that not having been pleaded, it is not open under the answer containing only a general denial, with averments of payment, and of accord and satisfaction. Kidder v. Supreme Commandery United Order of the Golden Cross, 192 Mass. 326, 78 N.E. 469. It, moreover, is doubtful if it is open under the terms of the request. But if we pass these objections, as the plaintiff...
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