Judge v. Pfaff

• Decision Date: 19 May 1898
• Citation: 50 N.E. 524,171 Mass. 195
• Parties: JUDGE v. PFAFF.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

171 Mass. 195

50 N.E. 524

JUDGE v. PFAFF.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1898

COUNSEL

H.P. Harriman and P. Mansfield, for plaintiff.

Edwin B. Hale, Dudley A. Dorr, and Robert A. Jordan, for defendant.

OPINION

HOLMES J.

The instrument in question is a conveyance in trust, made for the purpose, not only of securing, but of extinguishing, the debt which it mentions. It expressly provides that the trust shall continue until the debt is extinguished, unless the trustee agrees to its revocation by the grantor. In pursuance of this purpose the trustee is given different and more extensive powers than those contained in simple mortgages. The power to sell is not the usual power to sell upon a future default which may or may not happen, but a power forthwith or at any time to convert the property conveyed, or any part of it, into money. It is coupled with a power to exchange, and stands alongside of a power to convert realty into personalty, and personalty into realty. The proceeds of a partial sale may be used to extinguish incumbrances upon the residue; and while we assume, for the purposes of argument, although the deed expressly contemplates investments, that upon a sale of the whole it would be the trustee's duty to apply so much of the proceeds as are necessary to the payment of the debt, we do not think this fact sufficient to bring the power within the operation of Pub.St. c. 181, § 17, requiring a publication of notice before a sale under an ordinary mortgage power. That chapter does not prevent a debtor from conveying property in satisfaction of a debt, either immediately or through the mediation of a trustee with power to sell and apply the proceeds; and section 17 does not interfere with or regulate the exercise of such a power. The contract set up is equally unaffected by section 21, giving a right of redemption unless there has been an entry and three years' possession, or a sale under a power of sale. It is unnecessary to consider whether, if a mortgagee selling at a common foreclosure sale should make a contract to cover a short time necessarily spent in completing the conveyance such a contract would not be a sale within the meaning of section 21.

There is no doubt that the trustee had power to bind himself and the trust estate by contract to make any sale which he had power to execute. Shannon v. Bradstreet, 1 Schoales & L. 52, 59; Lowe v. Swift, 2 Ball &...