McLaughlin v. Hanley

In this case the mortgagee assigned to one Foley, who sold June 4, 1877, under the powers in the mortgage, to one Kiernan, who sold back to the mortgagee. It is admitted that in this sale Kiernan acted as the agent of Hanley, the mortgagee and respondent.

The written notice by the holder of the mortgage to the mortgagor, of an intention to bid at the mortgage sale, required by Gen. Stat. R.I. cap. 165, § 15, was given to Francis McLaughlin, the mortgagor, and to no one else. But before this, Ann McLaughlin had, on September 5, 1874, attached the mortgaged land, and had, on April 18, 1877, levied her execution upon it. The execution sale was advertised for July 21, 1877, when it actually took place, and the land was bought by and conveyed to the said Ann. No notice under Gen. Stat. R.I. cap. 165, § 15, was given to her, although it could have been ascertained by inquiry at the office of the Recorder of Deeds in Providence that she had attached the land, and levied her execution upon it. Against such a sale, she, not having been notified, has still a right to redeem.

We think that the reasonable construction is, that the notice is to be given to the mortgagor or any one claiming under or through him. The legislature, it is true, might have abolished the equitable rule altogether. But it has not done so, and we do not think that it intended that a notice to the mortgagor only should affect any one who had acquired any right under him. The complainants are therefore entitled to relief.

Decree accordingly.