Briggs v. Briggs

135 Mass. 306, 1883 Mass. LEXIS 78

• Court: Massachusetts Supreme Judicial Court
• Decided: September 6, 1883
• Status: Published

Opinion

W. Allen, J.

The master correctly found that the defendant failed, in both sales of the mortgaged land, properly to protect the rights and interests of the plaintiff. The publications of notice were in a newspaper which had no circulation in the town where the land was situated, and, although made in three successive weeks, the first publication of one sale was only eleven days, and of the other only twelve days before the sale advertised. The notice failed to attract bidders. The few persons present at the sales were all there in the interest of the defendant, or upon a verbal notice of the sale from him. Notice was not given to the plaintiff, and he was not present. Only one or two bids besides the defendant’s were made, and those evidently by persons who did not expect to be purchasers. The defendant was himself the purchaser for much less than the value of the premises.

In executing the powers of sale, the defendant acted as trustee and agent for the plaintiff, and it was his duty, if he would himself be the purchaser, not only to conform to the terms of the powers, but to use the utmost good faith and diligence to protect the interests of his principal. It was obvious that sufficient notice of the sales to protect the interests of the plaintiff had not been given, and the defendant should have adjourned the sales and given further notice. Montague v. Dawes, 14 Allen, . Dexter v. Shepard, 117 Mass. 480. Roche v. Farnsworth, 106 Mass. 509. Drinan v. Nichols, 115 Mass. 353. Thompson v. Heywood, 129 Mass. 401.

The fact found by the master, that the plaintiff had notice of the first sale, is not material. Notice to the plaintiff would not have excused the defendant for proceeding with the sale, under the circumstances disclosed in the evidence; but it does not appear that the plaintiff had reasonable notice, or that he neglected anything that he could have done for his own protection.

The questions- put to the witnesses Rounseville and Ashley were properly excluded by the master. A general repute that the sales were to take place was not evidence of a general knowledge that notices of the sales had been given, or of the fact that such notices had been published. Decree affirmed.