Vahey v. Bigelow

• Decision Date: 01 March 1911
• Citation: 94 N.E. 249,208 Mass. 89
• Parties: VAHEY et al. v. BIGELOW et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

208 Mass. 89

94 N.E. 249

VAHEY et al. v. BIGELOW et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1911

COUNSEL

Sawyer, Hardy &amp Stone (Philip Mansfield, of counsel), for defendants.

OPINION

HAMMOND J.

This is an action against the makers of a promissory note, secured by a power of sale mortgage of real estate, to recover a balance alleged to be due after applying towards the payment of the note the proceeds of the sale of the security. The case was tried in the superior court without a jury. At the close of the evidence the defendants asked the court to rule as matter of law that the plaintiffs were not entitled to recover. The judge refused so to rule, and having so refused found for the plaintiffs in the sum of $4,003.02. The defendants made no special requests for findings either upon the question of notice or upon the manner of foreclosing; and the only question raised upon the record is whether the ruling requested should have been given.

The sale was advertised as required in the power of sale. 'No further advertising was done. No posters were printed and none was put up in a public place. No handbills were distributed. No prospective purchasers were notified or sought. All that was done was a mere literal or bare compliance with the power contained in the mortgage, except as appears from the testimony of Richards' as to notice to the defendants. There were 'not more than ten present at the sale, and the only bid made was that of * * * Richards of $7,200.' At the time of the foreclosure neither of the defendants had any interest in the real estate described in the mortgage, each having sold out more than two years before. Richards, who throughout the foreclosure proceedings acted as the attorney of the plaintiff and who took his deed as such, testified in substance that 'his remembrance' was that before the sale he notified each of the defendants by sending a copy of the advertisement thereof. There was, however, 'direct, affirmative and positive evidence * * * tending to show that the * * * defendants never received any notice of the sale.' On the question whether any such notice was given or received, the evidence was conflicting and would warrant a finding either way. It was a question of fact for the decision of the judge as the trier of fact. The fair market value of the property at the time of the foreclosure sale was found by him to be $10,000.

'In an action upon a mortgage note to recover the balance due after a foreclosure sale, where the mortgagors were not the owners of the equity at the time of the sale, we think that it is open to the makers of the note to show, as bearing upon the amount due, that the sale was not conducted as it should have been, and that more should have been realized especially if the holder of the mortgage was himself the purchaser.' Morton, J, in Boutelle v Carpenter, 182 Mass. 417, 419, 65 N.E. 799, 800. And accordingly in that case it was held that it was competent for the trial judge under the circumstances therein disclosed to consider whether or not the sale was properly conducted. The property had been bought by the mortgagee for $50, and it was agreed by the parties that, if it was competent for the justice to consider whether or not the...