DeLuca v. Flagg ( 1931 )

CHURCHILL, J.

Beard. Jury trial waived.

The plaintiff purchased certain real estate at a mortgagee’s sale and paid $215.00 as a deposit. The plaintiff seeks to recover this amount on the ground that the -sale was illegal and void owing to an inaccurate description of the property contained in the notice of sale given by the mortgagee.

The defendant admitted at the trial that the allegations in the declaration were true. The plaintiff offered no evidence but relied on the facts as set forth in the deelaration. The sale was not illegal and void, but voidable only.

2 Jones on Mortgages, 6th Ed., ■See. 1907.

The plaintiff does not set forth in the deelaration that he was prejudiced by the inaccuracy in the description of the property or that he was injured thereby, and no claim is made that he labored under any mistake in making his bid.

“A purchaser buying at a sale under a power in the mortgage contained is chargeable with notice of defects and irregularities attending the sale, and is chargeable with knowledge whether proper notice of the sale was given and whether the sale was made at the time and in the manner required by the power.”

For plaintiff: Harry C. C. Koehne. For defendant: Robert M. Franklin.

2 Jones on Mortgages, Sec. 1913.

Decision for the defendant for the costs.