Pope v. Burrage
| Decision Date | 20 June 1874 |
| Citation | 115 Mass. 282 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Frederic Pope v. Alvah A. Burrage & others |
Suffolk. Bill in equity against Alvah A. Burrage and William W Burrage, executors of William Burrage, Josiah Burrage and Edward G. Russell, to redeem a parcel of land in Cambridge from a mortgage. Hearing before Devens, J., who reported the case for the consideration of the full court substantially as follows:
The defendants, Alvah A. and William W. Burrage, assignees of the mortgage, advertised the premises for sale under the power. The advertisement gave no notice that any sum of money was to be required as a deposit at the time of sale.
At the sale, September 8, 1873, the auctioneer gave notice that a deposit of two hundred dollars would be required, unless the purchaser was known either to the holders of the mortgage or to the auctioneer. The defendants, Josiah Burrage and Russell, were both present at the sale in consequence of having seen the advertisement, and the said Russell, being unknown, did not bid because he had not the sum of money to make the deposit, and the estate was sold to the defendant Josiah Burrage, for $ 2550. The plaintiff did not know of and was not represented at the sale. On September 17, 1873 Josiah Burrage sold the estate to the defendant Russell, for $ 3000.
The defendants, Alvah A. and William W. Burrage, had made several written demands upon the plaintiff for payment of the mortgage debt; and on June 27 gave notice that if the debt was not paid they should foreclose the mortgage; and on July 29, 1873, gave him written notice that they should proceed to foreclose the mortgage, but gave no notice to the plaintiff of the time or place of the sale, other than bye publishing said advertisement.
The judge found that there was no want of good faith on the part of the holders of the mortgage; that upon all the evidence the holders of the mortgage did all that was required by the terms of the power, and by the good faith required of a mortgagee selling under a power, subject to the opinion of the full court on the question reserved; and that the premises were worth at least three thousand dollars.
The presiding judge reserved the question whether, inasmuch as the advertisement did not state the terms of sale, or that the terms would be stated at the time of the sale, the fact that at the sale a deposit was required as above set forth and that this prevented a bid by said Russell, rendered the sale invalid, and entitled the complainant to the relief prayed in his bill.
Bill dismissed.
O. W. Holmes, Jr. & W. A. Munroe, for the plaintiff. A scrupulous regard to the interests of the mortgagor is always required in the summary proceeding under a power of sale. Montague v. Dawes, 14 Allen 369, 373. Thus in the form of the advertisement a literal compliance with the terms of the power is not enough, if anything more can reasonably be done to secure the interests of the purchaser. It must show who orders the sale. Roche v. Farnsworth, 106 Mass. 509. Hoffman v. Anthony, 6 R. I. 282. It must properly describe the premises and the interest to be sold, so that parties may know what they are going to buy. Fenner v. Tucker, 6 R. I. 551, 553. Fowle v. Merrill, 10 Allen 350. Burnet v. Denniston, 5 Johns, Ch. 35, 42. It must set forth the time and place of the sale. Fenner v. Tucker, supra. It must, in short, inform the public beforehand what, when and how they may buy. It is another equally clear principle that any conduct of the person controlling the sale which tends to diminish competition is a ground for setting the sale aside, especially if the mortgagor is absent. It is enough that he causes the loss of a single bid. Fenner v. Tucker, supra. 1 Sugd. Vend. & Purch. (Am. ed.) 17, and cases cited note q.
W. W Burrage, for the defendants...
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...power by which it could require that a subsequent deed, including a mortgage deed, contain the requisite restriction.11 See Pope v. Burrage, 115 Mass. 282, 285 (1874) ("The power to do an act includes the power to do all such subordinate acts as are usually incident to or are necessary to e......
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...all such subordinate acts as are usually incident to or are necessary to effectuate the principal act in the best manner." Pope v. Burrage, 115 Mass. 282, 285 (1874). The foreclosure sale in this case met the statutory requirements. The sale was a public auction. Chemical Bank published not......
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