REHRIG v. INMAN

Equity Pleading and Practice, Appeal. Equity Jurisdiction, To set aside sale in foreclosure of mortgage. Mortgage, Of real estate: foreclosure. Evidence, Admission in brief.

A motion by a plaintiff in a suit in equity for leave to file late appeals from an interlocutory and from a final decree must be denied where the only reason given for not filing the appeals within the proper time was belief by the plaintiff that the defendant would claim no appeal if the plaintiff did not and there was no allegation and no proof of fraudulent conduct on the part of the defendant which caused the plaintiff to entertain such erroneous belief. Where, in a suit in equity to have a foreclosure sale under a mortgage of real estate declared invalid and a reconveyance to the plaintiff ordered, findings by a master, without a report of the evidence, were in substance that the only ground for foreclosure was that interest "was not paid or tendered when due or prior to the sale"; that previous to the foreclosure the defendant collected rent from the property for the plaintiff and had in his hands sufficient money to satisfy the claim for interest; and that the defendant had purchased at the foreclosure sale and still held title, a final decree is warranted directing reconveyance of the premises to the plaintiff upon payment of the amount due from the plaintiff to the defendant in an accounting under G.L.c. 244, § 20.

WAIT, J.

This cause is before us upon the appeals of the defendant from an interlocutory decree and a final decree entered by the Superior Court. Motion has been filed by the plaintiff after the periods for filing appeal had expired asking that leave be granted to claim and enter her appeal. This motion must be denied. Belief that one opponent will claim no appeal if the other does not, is not a sufficient excuse for omitting to take appropriate action to secure and perfect an appeal, unless such belief is induced by fraud. There is no allegation and no proof of fraudulent conduct on the part of the defendant which caused the plaintiff to entertain her erroneous belief.

There was no error in the order overruling the defendant's exceptions to the master's report. The finding of fact, that there was nothing due the defendant, as mortgagee, at the time of the foreclosure of her mortgage, cannot be set aside. There is no report of all the evidence. In such case, the master's findings of fact must stand. Martin v. Barnes, 214 Mass. 29. Nor was there error in the final decree. If nothing was due the mortgagee at the time of foreclosure, the sale made under the power of foreclosure was invalid Rogers v. Barnes, 169 Mass. 179. The plaintiff, therefore, was entitled to a reconveyance upon paying such sum as might be found due on an accounting under G.L.c. 244, § 20.

The facts found justified the conclusion that such expenditure as had been made upon the premises, although greater than ordinarily would be allowed, MacFarlane v. Thompson, 241 Mass. 486, had been authorized by the mortgagor.

The defendant says in her brief that the amount found due was agreed to be correct if the ruling of the court was proper. It is not open for her, therefore, now to contest it. The order must be.

Decrees affirmed.