Fall River Savings Bank v. Sullivan

131 Mass. 537, 1881 Mass. LEXIS 314

• Court: Massachusetts Supreme Judicial Court
• Decided: November 10, 1881
• Status: Published

Opinion

Endicott, J.

The presiding judge has found that the defendants had notice of all the proceedings attending the sales of the estate, under the power contained in the mortgage, and that everything was fairly conducted, in good faith and with good judgment. It also appears from the bill of exceptions, that the plaintiff seasonably tendered to the purchaser at the first sale a deed of the premises, and was then informed that she was financially worthless, that she was unable to obtain the money, and that she could not complete the sale.

We must take it to be an established fact, so far as this case is concerned, that the purchaser was unable to comply with the terms of the sale; and, under the circumstances, we are of opinion that the plaintiff could properly offer the estate again for sale. Wing v. Hayford, 124 Mass. 249. Hood v. Adams, 124 Mass. 481. To bring a bill to compel specific performance of the contract of purchase by a person irresponsible and absolutely unable to pay for the estate, is not required of a mortgagee. It would be unreasonable and useless to impose such an obligation upon him, and the delay attending such proceedings might seriously affect the interests of the parties and the value of the property.

It being found that the plaintiff acted in good faith, with due regard to the interest of the sureties, we fail to find any reason why the plaintiff should not recover' the balance due upon the note. Draper v. Mann, 117 Mass. 439.

Exceptions overruled.