Moore v. Dick

• Citation: 72 N.E. 967,187 Mass. 207
• Parties: MOORE et al. v. DICK.
• Decision Date: 05 January 1905
• Court: United States State Supreme Judicial Court of Massachusetts

187 Mass. 207

72 N.E. 967

MOORE et al. v. DICK.

Supreme Judicial Court of Massachusetts, Essex.

January 5, 1905

COUNSEL

G. L. Mayberry and W. M. Morgan, for appellant.

Wm. H Niles, Frank D. Allen, and Walter L. Van Kleeck, for appellees.

OPINION

HAMMOND J.

This is a bill to redeem land from two mortgages given by Henry Moore, the father of the plaintiffs. The bill is resisted upon two grounds, the first of which is that the first mortgage has been duly foreclosed by sale under the power therein contained, and the second that, if the foreclosure was imperfect by reason of any defect in the proceedings, the plaintiffs are barred by laches. After the hearing before the master had closed, and the draft report had been shown, the defendant requested the master to annex to the report a copy of the evidence bearing upon several findings. The master refused to comply with such requests, and the defendant duly excepted. Subsequently the defendant moved that the court order the master to report all the material evidence bearing upon his exceptions, alleging that the court could not properly dispose of them without such a report. The motion was overruled, and the defendant appealed.

The rule to the master directed him 'to hear the parties and their evidence, and report his findings of fact and law to the court.' Under this rule he was not bound to report the evidence. It was open to either party during the hearing before him to move in court that he be required to report the whole testimony, or any part of it, if, in the progress of the hearing, either party considered that such a course was necessary or desirable. This was not done. 'For the losing party to come in for the first time after the hearing is closed and the draft report is known, and ask for a report of the evidence, is never looked upon with favor' (Parker v Nickerson, 137 Mass. 487, 493), and we are not satisfied, from an examination of this report, or from anything before us, that justice requires that the exceptions, so far as based upon the refusal of the master to comply with these requests, should be sustained, or that the motion made to the court about the same matter should have been granted. We proceed, therefore, with the examination of the case as presented by the master's report.

The validity of the foreclosure proceedings taken in 1883 by one Fairchild, then the holder of both mortgages is attacked solely upon the ground that the notice of sale was not inserted in the paper designated in the power. As to this the master finds as follows: 'The power of sale in the first mortgage provides that the notice of sale shall be published in 'the Reporter Newspaper, printed in the county of Essex aforesaid.' At the date of this mortgage, October 10, 1873, there was published in Lynn a newspaper which had as its name at the top of the first page, 'Lynn Semiweekly Reporter.' This paper had been published in Lynn since 1854. Its publication was continued till 1880, when it passed into the hands of new owners, who then began the publication from the same office of two newspapers--a daily, whose title was the 'Lynn Daily Bee,' and a weekly, entitled 'The Lynn Reporter.' They continued to publish the latter under the same name till 1899. Neither in 1873 nor in 1883 was there any other newspaper printed in the county of Essex whose name contained the word 'Reporter.' Both the 'Lynn Semiweekly Reporter' and 'The Lynn Reporter,' during the whole of their existence were commonly known in Lynn by the name of 'The Reporter.' In 1873 it was what is ordinarily spoken of as a 'family paper,' and was the leading paper of that kind in Lynn. It had a good circulation, with many regular subscribers. It contained a summary of the news, with stories and other matters of literary interest, and was in common use for advertising legal notices. It was taken regularly and read by the plaintiffs and their father during its whole existence from 1854 to 1889, and was sent to those of the plaintiffs who were away from Lynn. The publication of a daily paper by the same owners after 1880 had the tendency to diminish the circulation of the weekly. This effect was not at once very great, but increased gradually, till in 1889 it was such that the publication was then stopped. I find that 'The Lynn Reporter' was substantially a continuation of the 'Lynn Semiweekly Reporter,' and that they both answered the description of 'The Reporter newspaper printed in the county of Essex.' The 'Lynn Daily Bee,' or the 'Lynn Bee,' as it is called in the Fairchild affidavit, was in no sense 'The Reporter newspaper' mentioned in the power. The newspaper designated in the power of sale I find was 'Lynn Semiweekly Reporter,' commonly know as 'The Reporter.' I find that this was the newspaper the mortgagor and mortgagee had in mind when the mortgage was given. It is probable that if the notice had been published in the Reporter the plaintiffs would have known of the sale. The publication of the notice of sale in the 'Lynn Bee,' was not such a publication as was required by...