Tallman v. New Bedford Five Cents Savings Bank

138 Mass. 330, 1885 Mass. LEXIS 183

Opinion

Holmes, J.

This case is disposed of by Brown v. New Bedford Institution for Savings, 137 Mass. 262. The fact that, before March 9, 1883, when the notice of the filing of a creditor’s petition in insolvency was first published, the defendant had advertised the mortgaged land for sale, and that the debtor had read the advertisement, while it carried the defendant a step nearer to realizing its security, did not change the relation of the parties in any way. The defendant still held the land for the same alternative purposes as at the date of the mortgage, to foreclose or convert into money if the mortgage debt was not paid, or, if the debt was paid, to lose its title even against its will. Its authority was no greater than at the date of the breach, although one condition of its exercise had been fulfilled. The debtor had added no new power or request to sell. All that can be said is that the empirical probability of her redeeming grew less as the day of the sale approached. But the land was none the less held for the purpose of being restored on payment because of the diminishing probability of that alternative.

Judgment for the plaintiffs affirmed.