Way v. Mullett

Devens, J.

I am unable to concur in the opinion of the majority of the court. On examining the facts found, it will be seen that the question presented by the case at bar is, whether, after breach of condition of a mortgage by failure to pay the *55 debt secured thereby, which mortgage contains a power of sale to be executed by the mortgagee or his assignee, and after the execution of such power has begun by advertising the premises for sale, the mortgagor, not only failing to make any actual tender, but wholly neglecting and practically'refusing so to do, may deprive the mortgagee of his right to sell the mortgaged property, except subject to the right of redemption, by simply filing a bill in equity offering to redeem, and notifying purchasers of such filing.

In the opinion of the court, this question is determined in favor of the plaintiff’s contention by the provisions of the Pub. Sts. g. 181, §§ 21, 27. Section 21 provides that, “ when the condition of a mortgage has been broken, the mortgagor, or any person lawfully claiming or holding under him, may redeem the mortgaged premises, unless the mortgagee, or some person lawfully holding or claiming under him, has obtained possession of such premises for a breach of the condition, and has continued that possession for three years, or unless a sale of such premises has been made pursuant to a power of sale contained in the mortgage.” The view taken by the court seems to me a misconstruction of this section, by reason of the failure to connect it with those wliich follow. Section 21 having provided who may redeem, and when he may do so, § 22 proceeds to provide what “the person entitled to redeem”—it would seem as described in the previous section -— shall' do, which is that he shall pay or tender the debt or performance of the condition. If these sections are necessarily connected, § 21 can have no bearing on the case at bar, as no tender was made. That they are thus connected is shown, not only by their own language, but by reading the four sections that follow. Taken together, these six sections constitute a system by which a party entitled to redeem may pay or tender performance within three years after possession taken, or before sale of the premises under a power, and, having so paid or tendered, may have a year thereafter within which to commence a suit, even if, at the time of the commencement of the suit, the three years may have expired, or the sale have been made. Section 25 negatively thus enacts, by providing that “ the tender, if not accepted, shall not prevent the foreclosure of the right of redemption, unless a suit is commenced within one year after the *56 tender is made.” The legislation contained in these sections, excepting the clause as to a sale under a power, is found in the Rev. Sts. c. 107, §§ 12-17, and has been continued since. The construction here given is that attributed to them in Adams v. Brown, 7 Cush. 220 . The only effect of the introduction of the clause as to a sale under a power is to provide the means of defeating such a sale by a payment or tender.

If my view of § 21 is correct, it is still necessary for me to consider whether the plaintiff may not maintain this bill by virtue of § 27. If he might do so, I should concur in the result reached, even if not in the construction ascribed to § 21. Section 27 provides that a suit for redemption may be brought, “ without a previous tender,” by the person entitled to redeem “at any time before the expiration of the three years limited for the' redemption, and either before or after an entry for breach of the condition.” It will be observed that in this section no mention is made of any power of sale which might be contained in the mortgage, or of any effect which might be produced thereon by commencing such a suit.

What is popularly known as a power of sale mortgage is a combination of two instruments; — the one a security for a debt or other obligation by a mortgage of property to which the usual incidents of the right to foreclose on the part of the creditor and to redeem on the part of the debtor are attached; the other a power in the nature of a trust to sell the premises and to devote the proceeds to the payment of the debt. The latter is to be executed according to its terms, except so far as its effect or execution may be controlled by the statutes. The donor of the power cannot revoke it, as it is coupled with an interest. The rights of a creditor who is a mortgagee and also the donee of a power are not less distinct because one instrument instead of two is used to state them. At the time the legislation we are discussing was originally passed, power of sale mortgages were not familiar securities. As above stated, it has been recently provided by statute (§§ 21-26), that the power of sale contained in a mortgage may be affected by a tender made previously to a sale of the premises, provided suit be brought thereon within one year. By this provision, these powers to sell are necessarily controlled, but no similar provision is found in § 27. The fact *57 that, in the sections which relate to suits brought upon tender made, the effect of such tender in defeating the power of sale is distinctly stated, while no allusion is made thereto in § 27, strongly indicates that the power to sell is not defeated by a bill brought without previous tender, and that such a bill affects the creditor only as he is mortgagee, and not as he is donee of a power. No reason suggests itself to my mind why this distinction exists between § 21 and § 27, except that in a proceeding under § 27, if brought without previous tender, it was not contemplated that the power of sale would be affected.

Cranston v. Crane, 97 Mass. 459 , and Montague v. Dawes, 12 Allen, 397 , are both cases in which the court discuss the effect of a tender upon the power to sell. While it is not so decided, nor stated in terms, they both apparently proceed on the theory that the only mode in which a power to sell may be defeated is by tender. It is readily understood why legislation might intervene to prevent the exercise of a power to sell granted by the debtor when such debtor was ready to pay or tender his debt, as it has done under § 21; but it is not so conceivable why it should do so when the debtor fails to do anything towards complying with his obligation. Nor do I find it easy to suppose that the prompt remedy intended to be obtained by a power of sale can be defeated by so simple a device as filing a bill alleging a willingness to pay, after a persistent refusal to pay or to tender anything. That, upon filing such a bill, the court in its discretion may issue an injunction restraining the sale, is true, but that discretion will be applied to the circumstances, and will be governed by them. The applications for such orders have been frequent, and they have been carefully investigated by the justices of this court; yet, if the law be as claimed by the plaintiff, such investigation has been idle, as all that could be attained by an injunction was readily obtained without invoking that process.

The law on this subject is so controlled by statute that authorities from England or other States have less value than on legal subjects the discussion of which depends on general principles, but it has been held elsewhere that a bill to redeem does not suspend the power to sell. Adams v. Scott, 7 W. R. 213. Rhodes v. Buckland, 16 Beav. 212. Benjamin v. Loughborough, 31 Ark. 210 .

*58 It is contended that the cases of Eaton v. Whiting, 8 Pick. 484 , and Shaw v. Norfolk County Railroad, 5 Gray, 162 , sustain th§ position that filing a bill, with an offer to pay what is due, will suspend the exercise of a power of sale. Eaton v. Whiting decides only that the interest of a mortgagee is not attachable at law on mesne process, and, further, that the fact that the mortgagee has a power of sale which he has not executed, does not change the relation of mortgagor and mortgagee, “if that was the relation created by the instrument separate from the power.” In other words, that the power to sell possessed by the mortgagee had not added any qualities which enlarged the estate in him so as to render it subject to his debts by attachment and levy. Shaw v. Norfolk County Railroad is very similar in principle. Of such an instrument it is there said: “ It was not less a mortgage than it would otherwise have been, because the grantees were invested by special agreement with an additional authority beyond what they would have possessed without it, and which they had no right to exercise except under an express stipulation. And so long as they took no advantage of it, and nothing was done under it, the rights and interests of the respective parties to the conveyance, and their relations to each other, were in no respect changed or affected by it.” 5 Gray, 182 . This gives no color to the idea that, because the power, unexecuted, has no effect on the mortgage relation, it cannot be executed if the mortgagor seeks to redeem the mortgage. Both opinions, in terms, treat the mortgage relation created by the instrument as “ separate from the power.” In neither of these cases had there been any attempt to execute the power, and the only question was whether an unexecuted power had in any way affected the mortgage estate. When a mortgagee has actually begun the execution of his power, it cannot, in my view, have been the intention of the statute that he should be prevented from so doing, unless upon tender made and bill promptly brought in compliance with §§ 21-25, or unless he should be restrained by the court, for equitable reasons, from exercising the power. '