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135 Mass. 306

Briggs v. Briggs

Massachusetts Supreme Judicial Court

Decided September 6, 1883

Massachusetts Supreme Judicial Court · decided 1883-09-06

Bill in equity, filed February 4, 1881, to redeem a parcel of land in Rochester, in this county, from two mortgages. The case was referred to a master, whose report was in substance as follows: The first mortgage was made on December 9, 1875, and was from the plaintiff to the defendant, of one undivided half of the' land, for $600, payable on demand, with interest at the rate of six per cent. The plaintiff’s wife released dower. The second mortgage was dated January 15, 1877.

Relies on Dexter v. Shepard · Thompson v. Heywood · Roche v. Farnsworth

Good law ✅— No negative treatment on recordhow we know

Decided 1883-09-06

How this case has been cited

Cited by 15 later decisions — most recently May 2008

14 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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W. Allen, J.

¶1The master correctly found that the defendant failed, in both sales of the mortgaged land, properly to protect the rights and interests of the plaintiff. The publications of notice were in a newspaper which had no circulation in the town where the land was situated, and, although made in three successive weeks, the first publication of one sale was only eleven days, and of the other only twelve days before the sale advertised. The notice failed to attract bidders. The few persons present at the sales were all there in the interest of the defendant, or upon a verbal notice of the sale from him. Notice was not given to the plaintiff, and he was not present. Only one or two bids besides the defendant’s were made, and those evidently by persons who did not expect to be purchasers. The defendant was himself the purchaser for much less than the value of the premises.

¶2In executing the powers of sale, the defendant acted as trustee and agent for the plaintiff, and it was his duty, if he would himself be the purchaser, not only to conform to the terms of the powers, but to use the utmost good faith and diligence to protect the interests of his principal. It was obvious that sufficient notice of the sales to protect the interests of the plaintiff had not been given, and the defendant should have adjourned the sales and given further notice. Montague v. Dawes, 14 Allen, *310369. Dexter v. Shepard, 117 Mass. 480. Roche v. Farnsworth, 106 Mass. 509. Drinan v. Nichols, 115 Mass. 353. Thompson v. Heywood, 129 Mass. 401.

¶3The fact found by the master, that the plaintiff had notice of the first sale, is not material. Notice to the plaintiff would not have excused the defendant for proceeding with the sale, under the circumstances disclosed in the evidence; but it does not appear that the plaintiff had reasonable notice, or that he neglected anything that he could have done for his own protection.

¶4The questions- put to the witnesses Rounseville and Ashley were properly excluded by the master. A general repute that the sales were to take place was not evidence of a general knowledge that notices of the sales had been given, or of the fact that such notices had been published. Decree affirmed.

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