Pearson v. Gooch

• Decision Date: 11 March 1898
• Citation: 40 A. 390,69 N.H. 208
• Parties: PEARSON v. GOOCH et al.
• Court: New Hampshire Supreme Court

40 A. 390

69 N.H. 208

PEARSON

v. GOOCH et al.

Supreme Court of New Hampshire. Rockingham.

March 11, 1898.

Exceptions from Rockingham county.

Bill by Albert M. P. Pearson against Joseph L. Gooch and others. The bill was dismissed, and plaintiff excepts. Exceptions sustained.

William P. Burke conveyed the real estate in question to Gooch & Pray, by a mortgage deed dated November 27, 1894, to secure the payment of his promissory note of that date for $7,000. The mortgage contained the following power: "And it is agreed that, on failure of performance of any of said conditions, the said grantees or their legal representatives or assigns may advertise said mortgaged premises for sale, by publication of notice in some newspaper printed at Exeter, in said county, three weeks successively before such sale, and may sell the same by public auction to the highest bidder; and his deed thereof, in pursuance of such sale, shall convey to the purchaser an indefeasible title to the same, discharged of all rights of redemption by the mortgagor or any other person claiming under him; and the mortgagee shall apply the proceeds of said sale in payment of said mortgage debt, and pay over the balance, if any, to the mortgagor, after deducting the expense of notice and sale, and the purchaser shall not be answerable for the application of the purchase money." Gooch & Pray, acting under the power, sold the real estate by auction, October 24, 1896, to the defendant Sanborn, for $4,700, and conveyed the same accordingly. Sanborn has had possession ever since, and has expended $300 to $500 in making repairs and improvements upon the property. The advertisement of the sale stated that the premises would be sold "subject to any and all unpaid taxes, * * * liens, and incumbrances which may be entitled to precedence over said mortgage, if any such there be." When the $7,000 mortgage was made, prior mortgages amounting to about $6,000 were outstanding. These mortgages were paid from the proceeds of the $7,000 mortgage, but were assigned to Gooch & Pray for the purpose of preventing intervening liens from attaching to the property, and not with the intention of keeping them in force as against the $7,000 mortgage. Upon inquiry being made at the sale concerning prior incumbrances, these facts were stated; and it was further stated that Gooch & Pray claimed nothing under the prior mortgages, and would discharge them, so that the purchaser would get a title unincumbered by them. A person offered to raise the last, bid $500 if Gooch & Pray would give a warranty deed, but they declined, at the same time stating that they had had the title examined by a competent lawyer, and believed it to be good. The terms of the sale (stated at its opening, but not in the advertisement) were that the property was to be paid for in cash or its equivalent, and that, if payment was not so made, the property would be sold again. Reasonable efforts were made to have the property bring its fair value, which was $6,000. Burke absconded in September, 1896, and was adjudged insolvent upon a creditor's petition filed October 3, 1896. The plaintiff is the assignee of his estate, and prosecutes this suit as such. Subject to the plaintiff's...