Harvey v. Smith

61 N.E. 217, 179 Mass. 592, 1901 Mass. LEXIS 621

• Court: Massachusetts Supreme Judicial Court
• Decided: October 17, 1901
• Status: Published

Opinion

Kkowlton, J.

The power of sale contained in the mortgage is a power coupled with an interest, and neither the mortgagor nor the equitable owner that he represents can do anything to defeat the right of the mortgagees to foreclose by a sale under the power. The bankruptcy of the mortgagor would not affect the defendant’s rights. Hall v. Bliss, 118 Mass. 554.

The defendants are not parties to the suit in which the injunction was issued, and their rights are not affected by the injunction.

The admission of the defendant Truesdell, in his answer, does not bind the defendant Smith, who denied in his answer that Truesdell, or Weston, his attorney, who had the mortgage in his possession, objected to the proposed foreclosure, and averred that his action in foreclosing was with the knowledge and approval of Truesdell and Weston. As against Smith, therefore, it was incumbent on the plaintiff to prove his allegations, and the finding, of the master against him is conclusive. Moreover, Trues-dell in his answer only suggested that for certain reasons the foreclosure ought not to proceed until an account was taken, but at the hearing an agreement was made between the parties as to the state of the account, and both defendants agreed that an account was no longer necessary.

The alleged agreement in regard to the stock of the American Palace Car Company of Maine was immaterial, and the master rightly excluded the evidence of it. The plaintiff’s exceptions to the report are without merit.

Decree affirmed.