Donahoe v. Gillon , 167 Mass. 24 ( 1896 )

Knowlton, J.

The only question in this case is whether the sale of the goods by the defendant as mortgagee under the power of sale contained in his mortgage was a wrongful conversion of them.

It is a part of the condition expressed in the mortgage that the mortgagor shall not suffer the property or any part of it to be attached on mesne process, and the mortgagee is authorized, upon default in the performance or observance of the condition, to take immediate possession and to sell under his power. We need not consider whether, under possible circumstances, an attachment of the goods might be made which would not work a breach of the condition, for it appears that the first attachment in this case was upon a debt due from the mortgagor for goods purchased, and the attachment remained upon the property for thirteen days without being dissolved by the mortgagor, and other attachments were made upon debts against him before the mortgagee commenced proceedings. It is plain that the mortgagor suffered the property to be attached within the meaning of the language contained in the mortgage.

It is contended that the effect of this language, as interpreted and acted upon by the defendant, is to cut off the right of redemption, and that therefore, with this interpretation, it is repugnant to the law regulating the rights of mortgagees. Pub. Sts. c. 192, §§ 5, 6. But we are of opinion that it is a provision which might reasonably be inserted for the protection of the mortgagee. By the terms of the mortgage, the mortgagor has the right of possession until default, and the parties evidently intended to provide, as an inducement to the proper preservation of the property, and as a safeguard against the loss of his security by the mortgagee, that upon the waste or destruction of any part of the property, or an attempt to sell it by the mortgagor, or upon his suffering it to be attached, the mortgagee should at once be authorized to advertise it for sale by auction. The right of redemption would then continue until the sale, and it is unnecessary to consider what, under all conceivable circumstances, would constitute an offer to redeem sufficient to come within the statute, as the mortgagor in this case made no offer. Undoubtedly, if he had procured a discharge of the defendant from his liability on the note, that would have been a redemption. In what other ways, if any, he could have prevented the sale, in view of the fact that the note was not then due, we have no occasion to consider.

Even after a sale, if the note was not then due, doubtless the mortgagee, under the terms of the power, would hold the surplus of money above expenses as security for the payment of the note, and would be under an obligation either to appropriate it to the payment of the note, or to return it to the mortgagor if the payment was duly made by him. It is not contended that there was any failure properly to appropriate and account for the proceeds of the sale if the sale was authorized under the power, and we are of opinion that there was no error in the rulings at the trial. Judgment on the verdict.