Thompson v. Heywood

• Decision Date: 11 September 1880
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: William C. Thompson v. Charles L. Heywood & another

129 Mass. 401

William C. Thompson v. Charles L. Heywood & another

Supreme Court of Massachusetts

September 11, 1880

Suffolk. Bill In Equity, filed April 22, 1879, against Charles L. Heywood and Augustus N. Loring, alleging that, on November 20, 1874, Sarah W. Worster mortgaged to the plaintiff certain parcels of land in Revere, to secure the payment of $ 5000 and interest in three years from that date which mortgage was still unsatisfied; that, when the plaintiff took his mortgage, the land was subject to three prior mortgages, the first of which was for $ 3000 to Elijah A. Shaw, which was assigned to the defendant Loring on October 10, 1874; that the defendant Heywood was the owner of the equity of redemption in said land, having acquired title thereto by two conveyances, one in January 1875, and the other in March 1876, both of which conveyances referred to the mortgages, including the plaintiff's, as still outstanding, and recited that Heywood agreed to pay the same.

The bill further alleged that, on May 25, 1878, Loring executed a deed of the premises to Heywood, purporting to convey the land absolutely to Heywood, as the purchaser of the same by public auction, in execution of the power of sale contained in the first mortgage, of which Loring was the assignee; that the only public notice of the sale was by an advertisement in a paper called the Boston Home Journal, published in that part of Boston formerly Roxbury, having a very limited circulation, and no circulation in Revere, or in Lynn, where the plaintiff lived; that the sale took place at eight o'clock in the morning, and no one was present except Heywood, the auctioneer and one Rufus A. Johnson, the person who conveyed the equity of redemption in the land to Heywood that the land was struck off to Heywood for $ 3023, when in fact its value was from $ 10,000 to $ 15,000; that Loring had nothing to do with conducting the sale or with giving the notices of it, which matters were attended to by Heywood that the plaintiff had no knowledge of the sale until April 8, 1879; and that Heywood was not a purchaser in good faith.

The prayer of the bill was that the sale and conveyance to Heywood might be set aside; that the defendants be ordered to assign the first mortgage to the plaintiff upon his paying what, if anything, might be due thereon; and for further relief.

Heywood filed an answer denying that he had anything to do with conducting the sale, and averring that he was a purchaser at the sale in good faith. Loring also filed an answer averring that he sold his mortgage to Heywood for the amount of the principal and interest due thereon; that he knew nothing about any sale under the power contained in his mortgage; and that he acted in good faith.

At the hearing, before Ames, J., it appeared that the record title of the parties to the land in question was as set forth in the bill; that Johnson, while he held the equity of redemption under a deed in which he assumed to pay the mortgages then outstanding, purchased the second and third mortgages; that the sale was in literal compliance with the terms of the power contained in the mortgage held by Loring and was made soon after eight o'clock in the morning of May 25, 1878; and that the circulation of the paper in which the advertisements of the sale were made was as stated in the bill. There was also evidence that the hour fixed for the sale was an unseasonable one; and that there was but one person present at the sale besides those named in ...