Streeter v. Illsley

• Decision Date: 28 February 1890
• Citation: 23 N.E. 837,151 Mass. 291
• Parties: STREETER v. ILLSLEY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 291

23 N.E. 837

STREETER v. ILLSLEY et al.

Supreme Judicial Court of Massachusetts, Middlesex.

February 28, 1890

COUNSEL

C.S. Lilley, for plaintiff.

Alfred G. Lamson, for defendants.

OPINION

DEVENS J.

It is urged by the defendants that the power of sale contained in the mortgage made by them to the Andover Bank, of the premises of which possession is sought by this process, was not legally executed, and thus that no title passed to Kingsley and Woodward, who were the purchasers at the sale. The plaintiff claims the premises, by virtue of a written lease under seal from Kingsley and Woodward, and the defendants are lessees at will of Kingsley and Woodward and had attorned to them after their purchase, and the delivery of the deed to them from the Andover Bank. The defendants contend that the estate that passed to the plaintiff's lessors, and from them to the plaintiff, was only the estate of a mortgagee before foreclosure, and that such estate is less than, or at least cannot, as matter of law, be said to be greater than, the estate at will of the defendants. Palmer v. Bowker, 106 Mass. 317; Streeter v Ilsley, 147 Mass. 141, 16 N.E. 776.

We shall not have occasion to examine the force of this contention, as we are of opinion that its basis is erroneous and that it cannot be successfully maintained that the power of sale under which Kingsley and Woodward obtained title was executed defectively. The only ground upon which this sale was sought to be impeached was that the form of notice thereof as published, was insufficient. The advertisement states that there "will be sold at public auction, for breach of the conditions contained in said mortgage deed, on Wednesday, the thirtieth day of June, 1886, at nine o'clock in the forenoon, on the premises which are bounded and described as follows, viz., a certain parcel of land," followed by a description thereof by metes and bounds. The defendants urge that this notice does not state what the mortgagee intended to sell, and that the description by metes and bounds is not a description of the premises to be sold, but merely of the place where the sale is to be held. We think that no person on reading this notice, would doubt that the words "will be sold" were connected with the words "a certain parcel of land," as described, and that the sale was to take place on the premises described as those which were to be sold. While the phraseology...