Pearson v. Gooch , 69 N.H. 208 ( 1897 )

It is urged that under the statutes (P.S., c. 139) powers of sale contained in mortgages are invalid. More than twenty years ago such powers were held valid (Very v. Russell, 65 N.H. 646) and have ever since been to a considerable extent in use. It is deemed unwise to disturb that judgment now, even if upon a reconsideration of the question a different result might be reached. Possibly the legislature may think it wise to make reasonable regulations for their use, similar to those prescribed in some of the other states where they are in general use.

The rights of the parties therefore depend upon the validity of the sale, under the power in the mortgage. One of the objections urged against it is that the notice of the sale is insufficient. The mortgagee in the exercise of the power of sale acts as a trustee of the mortgagor. Although he has the right to sell the property for the payment of the mortgage debt, all the proceeds of the sale above the amount necessary for that purpose belong to the mortgagor. In the performance of this duty he must exercise good faith and use reasonable diligence to protect the rights of the mortgagor under the terms of the power. He must use reasonable efforts to obtain a fair price for the property, in properly advertising and conducting the sale in those particulars which the contract leaves to his determination. An erroneous statement in the notice of the sale which would naturally mislead the public or deter persons from attending the sale and bidding, renders the sale void. Very v. Russell, 65 N.H. 646; Briggs v. Briggs,135 Mass. 306; Clark v. Simmons, 150 Mass. 357; Hoffman v. Anthony, 6 R.I. 282; Fenner v. Tucker, 6 R.I. 551; Burnet v. Denniston, 5 Johns. Ch. 35; Hubbell v. Sibley, 5 Lans. 51; Equitable Trust Co. v. Fisher,106 Ill. 189; 2 Jones Mort., s. 1852.

The advertisement of the sale stated that the premises would be sold "subject to any and all unpaid taxes, . . . liens, and incumbrances which may be entitled to precedence over said mortgage, if any such there be." The notice, taken in connection with the fact that prior mortgages to the amount of $6,000 which had been paid appeared by the records to be still subsisting upon the property, would naturally convey the impression that the premises were to be sold on the $7,000 mortgage, subject to the other mortgages of $6,000, and that the full amount of the mortgage claims then in force amounted to $13,000. This was calculated to mislead and deceive the public and prevent would-be purchasers from attending the sale and bidding.

The fact that at the sale, upon inquiry being made, it was stated that the $6,000 mortgage claims had been paid, does not remove the objection. It was then too late to correct the erroneous impression of the notice upon any who may have been thereby prevented from attending the sale. It cannot be presumed that the notice did not have the effect it was naturally calculated to produce and influence purchasers not to attend the sale. For this reason the sale was irregular and void. The result reached renders it unnecessary to consider the other questions raised. The exceptions are sustained, and there must be a

Decree for the plaintiff.

CHASE, J., did not sit: the others concurred.