Lucy v. Gray

61 N.H. 151

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1881
• Status: Published

Opinion

Stanley, J.

The defendant was the agent of the bank in the sale of the mortgaged property, and could rightfully do whatever was reasonably necessary to make a profitable sale. Goodale v. Wheeler, 11 N. H. 424. If he kept within his legitimate authority, his title was the bank’s title, and any defence the bank could make he can avail himself of,.as its agent. As against the bank, the plaintiffs are estopped to say that the property mortgaged was not personal estate, as they represented it to be in the mortgage. Ballou v. Jones, 37 Ill. 95; Williams v. Swetland, 10 Iowa 51; Libbey v. Pierce, 47 N. H. 309, 314. Whether it would be so considered as between the bank and Garland, it is not necessary to decide.

As the plaintiffs stood by and allowed the lathe and the jointer to be sold without objecting, or suggesting that those articles had not been legally advertised, they cannot now be heard to make that objection. Knowing that it was proposed to sell all the property mentioned in the mortgage, actively engaging in promoting the sale, and at the same time remaining silent as to a prior irregularity in the proceedings, they cannot equitably take advantage, after the sale, of the supposed defect. Gurnsey v. Edwards, 26 N. H. 224. 231; Davis v. Handy, 37 N. H. 65, 71; Wells v. Pierce, 27 N. H. 503, 510, 511.

Judgment for the defendant.

Blodgett, J., did not sit: the others concurred.