Boyajian v. Hart

Massachusetts Supreme Judicial Court

Boyajian v. Hart

188 N.E. 260, 284 Mass. 557, 1933 Mass. LEXIS 1151

CourtMassachusetts Supreme Judicial Court

DecidedDecember 11, 1933

StatusPublished

Cited by4 cases

This text of 188 N.E. 260 (Boyajian v. Hart) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Boyajian v. Hart, 188 N.E. 260, 284 Mass. 557, 1933 Mass. LEXIS 1151 (Mass. 1933).

Pincite

Opinion

By the Court.

This is a suit by the owner of the equity of redemption of real estate situated in Framingham to restrain the foreclosure of a mortgage to secure the payment of a note executed by the plaintiff. It is alleged in the bill that the defendant as holder of the mortgage has started to foreclose it and has advertised the sale of the property. The charging part of the bill is that the defendant has printed display advertisements of the foreclosure sale in certain unnamed Boston newspapers and has posted on the mortgaged premises a large display placard of the foreclosure sale not authorized by the mortgage, whereby the rights of the plaintiff have been jeopardized in selling the property or in raising money to redeem it before the sale, and that thus the defendant has failed to act in good faith and with due regard to the interests of the plaintiff. A demurrer to the bill was sustained and a final decree entered dismissing the bill. The plaintiff’s appeal brings the case here.

There are no allegations in the bill that there has not been default by the plaintiff in performance of the conditions of the mortgage, that there has been any unfairness in instituting the foreclosure, or that there has been failure by the defendant to comply with all the requirements of the mortgage as to the advertisements of the foreclosure sale and otherwise. The single ground for relief set forth in the bill is that there has been the stated publicity as to the foreclosure sale over and above the indispensable minimum prescribed by the mortgage.

One executing a power of sale contained in a mortgage is bound to exercise good faith and reasonable diligence to protect the interests of the mortgagor and the one holding the equity of redemption. Taylor v. Weingartner, 223 Mass. 243, 247. Krassin v. Moskowitz, 275 Mass. 80, 82, and cases cited. The allegations of the present bill fall far short of showing any violation of this principle. They [559]*559tend, rather, to indicate good faith in an endeavor to attract more purchasers to the sale than would be accomplished by a bare literal compliance with the terms of the mortgage.

Decree affirmed with costs.

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By the Court.

This is a suit by the owner of the equity of redemption of real estate situated in Framingham to restrain the foreclosure of a mortgage to secure the payment of a note executed by the plaintiff. It is alleged in the bill that the defendant as holder of the mortgage has started to foreclose it and has advertised the sale of the property. The charging part of the bill is that the defendant has printed display advertisements of the foreclosure sale in certain unnamed Boston newspapers and has posted on the mortgaged premises a large display placard of the foreclosure sale not authorized by the mortgage, whereby the rights of the plaintiff have been jeopardized in selling the property or in raising money to redeem it before the sale, and that thus the defendant has failed to act in good faith and with due regard to the interests of the plaintiff. A demurrer to the bill was sustained and a final decree entered dismissing the bill. The plaintiff’s appeal brings the case here.

There are no allegations in the bill that there has not been default by the plaintiff in performance of the conditions of the mortgage, that there has been any unfairness in instituting the foreclosure, or that there has been failure by the defendant to comply with all the requirements of the mortgage as to the advertisements of the foreclosure sale and otherwise. The single ground for relief set forth in the bill is that there has been the stated publicity as to the foreclosure sale over and above the indispensable minimum prescribed by the mortgage.

One executing a power of sale contained in a mortgage is bound to exercise good faith and reasonable diligence to protect the interests of the mortgagor and the one holding the equity of redemption. Taylor v. Weingartner, 223 Mass. 243, 247. Krassin v. Moskowitz, 275 Mass. 80, 82, and cases cited. The allegations of the present bill fall far short of showing any violation of this principle. They [559]*559tend, rather, to indicate good faith in an endeavor to attract more purchasers to the sale than would be accomplished by a bare literal compliance with the terms of the mortgage.

Decree affirmed with costs.

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Bluebook (online)

188 N.E. 260, 284 Mass. 557, 1933 Mass. LEXIS 1151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boyajian-v-hart-mass-1933.

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