Gadreault v. Sherman

Braley, J.

The master’s original report, to which all objections were waived, states, that the power of sale was fully executed and the mortgage regularly foreclosed. The report, however, on the plaintiff’s motion was recommitted, *149 and the defendant, who did not appeal, now contends that, the order having been based on inquiries not within the allegations of the bill, was irregular and the master had no authority to act. The order was discretionary; and it cannot be reviewed on the present record. Daniels v. Daniels, 240 Mass. 380, 385 . It follows, that the defendant’s exceptions to the master’s supplemental report, that the questions raised by the order of recommittal were incompetent, irrelevant and immaterial to any issue in the case, and that the master erred in admitting any evidence to support them, are not well taken, and the interlocutory decree overruling the exceptions and confirming the report is affirmed. Kennedy v. Welch, 196 Mass. 592, 594 .

The interest on the mortgage had been promptly paid to the mortgagee, but, the principal of $150 having become overdue, a foreclosure followed, of which the plaintiff had no actual notice although notice by publication had been given in conformity with the power. The defendant, who foreclosed, held the mortgage by assignment from the mortgagee, and at the time and place of sale he and one other person besides the auctioneer were present. But two bids were made, and the defendant, the highest bidder, obtained the property, valued by the master at $1,200, for $250.

The general principle has been repeatedly stated. The defendant was bound to act in good faith in the exercise of the power, using reasonable diligence to protect the interests of the plaintiff, the owner of the equity of redemption. Bon v. Graves, 216 Mass. 440, 446 .

The trial judge found, that on all the facts reported by the master and the fair and reasonable inferences to be drawn therefrom, “ they disclose a failure on the part of the defendant to use that good faith which the law requires in executing a power, even though on the face of the record there was a technical compliance with its terms.” It may be assumed that, if demanded, or if she had received actual notice of the foreclosure proceedings, the plaintiff would have paid the principal and saved her property. But, even if the defendant knew the title was in the plaintiff, the power did not require a demand, and although he proceeded to *150 foreclose within two days after obtaining the assignment, the master finds, that his purpose was not to secure the property for the benefit of a client, who had obtained a judgment and sold the property on execution in an action against the plaintiff’s brother, a former owner, from whom she acquired title, but to satisfy his mortgage. The evidence not being reported, the findings should not be set aside. Hoshor-Platt Co. v. Miller, 190 Mass. 285 . Fuller v. Fuller, 234 Mass. 187 . Glover v. Waltham Laundry Co. 235 Mass. 330 . It is manifest that the defendant’s bid was much below the fair value. But the power permitted him to buy, and if it is assumed that his purpose was to make as much money as possible, that is insufficient to reopen the foreclosure where as in the case at bar the evidence fails to show bad faith in the exercise of the power. Ryder v. Brockton Savings Bank, 235 Mass. 476, 481 . Talbot v. Gingras, 246 Mass. 356, 359 . The bill does not allege, nor does the record show, that an adjournment would have resulted in a larger attendance, or an increased price, and inadequacy of consideration, is of itself insufficient to set the sale aside. Fennyery v. Ransom, 170 Mass. 303 . Taylor v. Weingartner, 223 Mass. 243, 247 .

The result is, that the suit cannot be maintained, and the final decree for the plaintiff must be reversed, and a decree entered dismissing the bill.

Ordered accordingly.