Ternan v. Dunn , 194 Mass. 585 ( 1907 )

Knowlton, C. J.

This is an action of tort for the conversion of certain articles of household furniture. The defendant claims title under a mortgage. The St. 1892, c. 428, § 8, (R. L. c. 102, § 53,) which was in force when the mortgage was made, is as follows: “No mortgage of household"furniture on which interest is charged at the rate of eighteen per centum or more per annum, made to secure a loan of less than one thousand dollars, shall be valid unless it state with substantial accuracy the amount of the loan, the time for which the loan is made, the rate of interest to be paid, and the actual expense of making and securing the loan, nor unless it contain a provision that the debtor shall be notified in the manner provided in section seven of chapter one hundred and ninety-two of the Public Statutes, of the time and place of any sale to be made in foreclosure proceedings at least seven days before such sale.” This mortgage is of the kind mentioned in the statute. It contains no statement.of the “ actual expense of making and securing the loan.” The defendant offered to show that there was, in fact, no such expense. The plaintiff testified that there was such expense which was paid. The only question is whether the mortgage is valid without the statement, if in fact there was no expense.

We think the statute requires that such a mortgage shall “ state with substantial accuracy ” what the fact is in regard to each of the matters referred to as a subject for a statement. The statute recognizes that mortgagees, in transactions of this kind, are sometimes hard and oppressive in their dealings with mortgagors, and it was with a view to the protection of small borrowers at high rates of interest that these facts are required to be stated in the mortgage, so that they will appear of record. The benefit of the provision would be much diminished if the statement could be omitted, and the mortgage held valid upon the testimony of the mortgagee that there was no expense of making and securing the loan. It is in part to prevent the possibility of such contradiction as appeared at the trial in the present case that the written statement in the mortgage is required. If there was no expense, the mortgage should have contained a statement to that effect.

Exceptions overruled.