Hall v. Bliss

• Citation: 118 Mass. 554
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 22 October 1875
• Parties: Sarah E. M. A. Hall v. Harrison Bliss & others

118 Mass. 554

Sarah E. M. A. Hall v. Harrison Bliss & others

Supreme Court of Massachusetts

October 22, 1875

[Syllabus Material] [Syllabus Material]

Worcester Bill in Equity, filed October 28, 1874, to redeem a parcel of land in Blackstone from a mortgage.

At the hearing before Colt, J., the following facts were admitted:

The plaintiff is the wife of Edward S. Hall, of the city of New York, who, on January 24, 1870, being the owner of a manufacturing establishment in Blackstone, consisting of real and personal estate, mortgaged the same to Alexander T Stewart, of New York, to secure the payment of $ 80,000 on demand with interest, the plaintiff joining in the mortgage, in release of her right of dower. The mortgage contained the following clauses:

"Provided, nevertheless, that if the said grantor, or his heirs, executors, administrators or assigns, shall pay unto the said grantee, or his executors, administrators or assigns, the sum of eighty thousand dollars on demand, with interest semi-annually, at the rate of seven per cent. per annum, and until such payment shall pay all taxes and assessments on the granted premises, shall keep all buildings thereon insured against fire in a sum not less than eighty thousand dollars, for the benefit of the said grantee and his executors, administrators and assigns, at such insurance office as they shall approve, and shall not commit, or suffer any strip or waste of the granted premises, then this deed, as also a note of even date herewith, signed by the said Edward S. Hall, whereby he promises to pay to the said grantee or order the said sum and interest, at the times aforesaid, shall be void. But upon any default in the performance of the foregoing condition, the said grantee or his executor, administrators or assigns, may sell the granted premises, with all improvements that may be thereon, and all the fixtures and machinery therein contained, by public auction in said town of Blackstone, 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 county of Worcester, and in their own name, or as the attorney of the said grantor, may convey the same by proper deed or deeds to the purchaser or purchasers, absolutely and in fee simple; and such sale shall forever bar the grantor, and all persons claiming under him, from all right and interest in the granted premises, whether at law or in equity; and out of the money arising from such sale, the said grantee, or his representatives, shall be entitled to retain all sums then secured by this deed, whether then or thereafter payable, including all costs, charges and expenses incurred or sustained by reason of any failure or default on the part of the said grantor or his representatives to perform and fulfil the condition of this deed or any covenant or agreement herein contained; rendering the surplus, if any, together with an account of all such costs, charges and expenses to the said grantor or his heirs or assigns. And it is agreed that in case any sale shall be made as aforesaid, the grantor, or his heirs or assigns, will, upon request, execute and deliver such further deeds or instruments as may be necessary or proper to confirm such sale and to vest a perfect title to the premises sold in the purchaser thereof; that the said grantee, or his executors, administrators or assigns, or any person or persons in their behalf, may purchase at said sale, and that no other purchaser shall be answerable for the application of the purchase money."

On October 31, 1871, the mortgage debt being unpaid, Stewart entered upon the real estate to foreclose the mortgage, and recorded a certificate of his entry. On December 1, 1871, Hall being then the owner of the mortgaged property, subject to the mortgage, was adjudged a bankrupt, upon his own petition, by the District Court of the United States for the Southern District of New York, and on January 19, 1872, John H. Platt was appointed his assignee and received an assignment of his estate in due form. The mortgage debt remaining unpaid, Stewart advertised the mortgaged property for sale by public auction, under the power on December 13, 1871, and, at the auction sale held on that day, bid off the whole property, in his own name, for $ 50,000, and executed, under seal, in his own name, and as the attorney of Hall, a deed, which, after reciting the making of the mortgage to him, the power of sale, the default, the publication of the notice and sale, proceeded as follows: "Now, therefore, know all men, that we the said Edward S. Hall, by Alexander T. Stewart, his attorney, duly authorized as aforesaid, and Alexander T. Stewart, by virtue and in execution of the power contained in said mortgage deed as aforesaid, and of every other power and authority me hereto enabling, do, in consideration of fifty thousand dollars to me paid by the said Alexander T. Stewart, art, of said New York, hereby give, grant, bargain, sell and convey unto the said Alexander T. Stewart, all and singular, the premises conveyed by the aforesaid mortgage deed," "to have and to hold the same to the said Alexander T. Stewart and his heirs and assigns, to their use and behoof forever. In witness whereof we, the said Edward S. Hall and Alexander T. Stewart, have hereunto set our hands and seals this twenty-third day of December, 1871.

Edward S. Hall, [Seal.]

"by Alexander T. Stewart, Atty.

"Alexander T. Stewart. [Seal.]

This instrument was acknowledged the same day, and, with Stewart's affidavit of his doings, was recorded on December 27, 1871.

On March 5, 1872, Stewart conveyed all said mortgaged property, by quitclaim deed, to Platt as assignee, who, on the same day, conveyed the same to the defendants.

The property insured was partly destroyed by fire, February, 1873, and the defendants received a considerable amount of insurance money therefor.

The case was reserved, upon the foregoing facts, for the consideration and determination of the full court. If the court should be of the opinion that the plaintiff's right to redeem was barred, then the plaintiff's bill was to be dismissed; otherwise the case to be sent to a master to take the accounts necessary for the further determination of the case.

Bill dismissed.

T. L. Nelson & A. G. Bullock, for the plaintiff. As the plaintiff's bill was filed within three years after the entry to foreclose, her right to redeem the mortgage is clear, unless it is barred by the other proceedings. Davis v. Wetherell, 13 Allen 60.

The power of sale was never properly executed. Stewart was authorized, in case of a default in the performance of the condition of the mortgage, to sell the mortgaged premises at public auction, and to convey the same to the purchaser at such sale, either by his own deed, or by the deed of Hall, executed by Stewart as his attorney. No other method of executing the power was provided, and unless the power has been so executed, the mortgage has never been foreclosed and the plaintiff's right of redemption is still outstanding. The instrument relied upon as effecting a sale of the premises to Stewart is not a good execution of the power. It is not the deed or conveyance of Hall or of his grantee, or of Stewart.

It was impossible for Stewart to make a deed to himself, either in his own name or as the attorney of Hall. Dexter v. Shepard, 117 Mass. 480. Jackson v. Colden, 4 Cowen 266. Varnum v. Meserve, 8 Allen 158. Montague v. Dawes, 12 Allen 397; S. C. 14 Allen 369. 4 Cruise Dig. (Greenl. ed.) tit. 32, c. 1, § 25, note. Gen. Sts. c. 89, § 2.

The power of sale is to be strictly construed, and no title passes under it, unless all the conditions thereof are strictly complied with. Smith v. Provin, 4 Allen 516. Montague v. Dawes, 14 Allen 369. Roche v. Farnsworth, 106 Mass. 509. Powell v. Monson & Brimfield Manufacturing Co. 3 Mason 347. 2 Perry on Trusts, (2d ed.) § 602.

The transaction cannot be supported by the clause in the mortgage which authorized the mortgagee, or any person or persons in his behalf, to purchase at the sale. If it was intended by that clause to constitute such an instrument a deed or conveyance, the clause was simply void. But it may well be construed as authorizing the mortgagee to bid in the estate at the sale, and to take a conveyance through a third person. Dexter v. Shepard, 117 Mass. 480.

As an execution of the power of attorney from Hall, this execution is inoperative, because Hall had been...