Drinan v. Nichols

115 Mass. 353, 1874 Mass. LEXIS 217

• Court: Massachusetts Supreme Judicial Court
• Decided: June 27, 1874
• Status: Published

Opinion

Endicott, J.

It appears by the report that John T. Pope, being the owner of the estate, made and executed the mortgage and note to the defendant Nichols, and afterwards conveyed the equity to Michael Drinan, the plaintiff’s husband, who died intestate, leaving minor children, The note had been for some time deposited in a bank in Boston for the payee, and notices calling for the payment of interest as it became due were issued from the bank addressed to Pope. The plaintiff had twice paid the semi-annual interest to Pope on notice from him, and he had paid the same to the bank. The interest falling due July 18, 1873, a similar notice was issued by the bank to Pope, who called upon the plaintiff for the same, which she paid to him with the understanding that he would at once pay it to the bank or the mortgagee. This Pope did not do. On September 1, the plaintiff, learning he had neglected to pay it, sent him a message to attend to the matter, which he promised to do. It also appears that she sent word to the mortgagee’s attorney that she had paid the money to Pope, and that if he did not pay it over, she would, upon notice. It is alleged in the bill and not denied by the answer, and appears by the report, that the plaintiff informed the attorney of the defendant Nichols that Pope had received the money and would make the payment; but the defendants’ witness had no recollection that it was agreed that notice shóuld be sent to the plaintiff if he did not.

After this the mortgagee advertised the estate for sale according to the form prescribed in the mortgage, and it was sold by public auction September 30, to one Moore. It is not claimed by the defendants that the plaintiff had actual notice of the intended sale.

The report finds that the mortgagee acted in good faith, and in strict compliance with the conditions imposed in terms by the power of sale. Although the mortgagee acted in good faith, and did all she supposed she was legally required to do in conforming to the terms imposed by the power, we do not think that acting as a trustee for sale, and her attorney knowing thé position of the plaintiff, she paid proper regard to the interest and rights of her principal, the mortgagor, under whose power she undertook to make the sale.

Admitting, as the case finds, that Pope was not her agent, and had no authority to act for or to represent her, still she or her attorney well knew that through him the notices were sent, and the interest money paid by the plaintiff, and had notice, before she attempted to execute the power of sale, that the money to pay the interest due July 18 had been actually paid by the plaintiff to Pope for her, was in his hands, and that he had promised the plaintiff to pay it over. Whether upon these facts notice was agreed to be sent to the plaintiff if Pope failed to pay, is immaterial. The mortgagee knew that the plaintiff, as administrator of her husband’s estate, intending to protect the interests of his minor children, had actually paid the money through the accustomed channel, and expected it would be paid by Pope to the mortgagee. With such knowledge of the position and expectation of the plaintiff, a proper execution of the power, and a due regard to the rights and interest of the mortgagor or those having his estate in the premises, required of the mortgagee, when after a reasonable time it became evident that Pope would not pay, that notice should be given to the plaintiff, and a bare compliance with the terms of the power was not sufficient. Montague v. Dawes, 14 Allen, 369. Dyer v. Shurtleff, 112 Mass.

The sale is therefore liable to be set aside in equity, no deed having been delivered, and the plaintiff is entitled to redeem upon terms equitable to all parties.

No question was made at the hearing of the right of the plaintiff to redeem. All formal objections on that point are taken to have been waived, and the question has therefore been considered on its merits. Decree accordingly.