Way v. Mullett
Massachusetts Supreme Judicial Court
Bill in equity, filed April 1, 1885, alleging that the plaintiff was the owner of two parcels of land in Boston, each of which was subject to a mortgage for $1700; that the defendant was the assignee of the mortgages, and, contending that there had been a breach of condition of each of the mortgages, had entered upon each parcel for the purpose of foreclosing the mortgage thereon, and had advertised the same for sale on April 3, 1885, for breach of condition, under a power…
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Bill in equity, filed April 1, 1885, alleging that the plaintiff was the owner of two parcels of land in Boston, each of which was subject to a mortgage for $1700; that the defendant was the assignee of the mortgages, and, contending that there had been a breach of condition of each of the mortgages, had entered upon each parcel for the purpose of foreclosing the mortgage thereon, and had advertised the same for sale on April 3, 1885, for breach of condition, under a power contained in such mortgage, the alleged breach being the non-payment of interest; that the plaintiff was, and ever had…
1ConcurrenceDevens, J.
I am unable to concur in the opinion of the majority of the court. On examining the facts found, it will be seen that the question presented by the case at bar is, whether, after breach of condition of a mortgage by failure to pay the *55debt secured thereby, which mortgage contains a power of sale to be executed by the mortgagee or his assignee, and after the execution of such power has begun by advertising the premises for sale, the mortgagor, not only failing to make any actual tender, but wholly neglecting and practically'refusing so to do, may deprive the mortgagee of his right to sell the…
2Cases cited2 opinions
- Cranston v. CraneMassachusetts Supreme Judicial Court · 1867
- Benjamin v. Loughborough's Adm'rSupreme Court of Arkansas · 1876