77 A.2d 585
No. 3986Supreme Court of New Hampshire Hillsborough
Decided January 2, 1951
When the mortgagor under a power of sale mortgage ceased all payments on the mortgage and knowing that he was in default and that it had probably been foreclosed made no claim of any rights in the property for approximately eighteen years, a finding that he had waived his rights to attack the foreclosure sale for lack of notice was sustainable.
BILL IN EQUITY, to cancel a power of sale mortgage foreclosure and for an accounting. The plaintiff appeared at the hearing before the Superior Court with counsel and it was agreed that the issue there should be limited to the validity of the foreclosure. The Court made certain findings and rulings and entered a decree for the defendants. The plaintiff then appeared pro se and filed a bill of exceptions. In his brief he also made numerous motions to amend his original bill.
It appeared that proper notice by publication of the foreclosure proceedings was given, but the deed under the power of sale mortgage was silent as to notification by registered mail. The attorney for the mortgagee having deceased the Court was unable to determine whether such notice was actually given the plaintiff. When the plaintiff mortgaged the premises and when they were foreclosed on December 17, 1929, the plaintiff lived in Worcester, Massachusetts, but in April, 1930, he came to Goffstown near where the property was located and has been there ever since. The property has been conveyed to third parties who are joined as defendants.
Transferred by Wheeler, J. Other facts appear in the opinion.
Russell F. Gibbs, pro se (by brief and orally).
Wyman, Starr, Booth, Wadleigh Langdell (Mr. Louis C. Wyman orally), for the defendant Manchester Federal Savings and Loan Association.
Joseph J. Betley, for defendants Pollocks, filed no brief.
Page 413
BLANDIN, J.
The Court has found that the plaintiff waived his right to take advantage of irregularities in the notice of the foreclosure sale, if any existed, and that he is estopped from asserting any rights to the premises. There was evidence that the plaintiff ceased all payments on the mortgage in the summer of 1929, that he then knew he was in default and expected the defendant would foreclose. He concedes that thereafter he “gave no further thought to the matter” and “knew it had probably been foreclosed. . . . “From 1930 until 1948 although he knew others were occupying the premises, and had made “changes” and “enlarged” it he “made no effort to act as owner of this property” and told no one he had any claim to it.
We believe these facts support the finding of a waiver, (Kilgore v. Association, 78 N.H. 498, 501, 502; Mulhall v. Company, 80 N.H. 194, 205) and are clearly sustainable. Jaques v. Chandler, 73 N.H. 376, 384. This being so it is unnecessary to consider whether the finding of estoppel is warranted or what distinctions exist between it and the doctrine of waiver. See McCracken v. Insurance Company, 94 N.H. 474, and authorities cited; 31 C.J.S., Estoppel, s. 61 (b).
The plaintiff’s remaining exceptions having been examined and none appearing sustainable, and it further appearing that if the motions contained in his brief were granted it would not affect the result, the order is
Decree affirmed.
DUNCAN, J. concurred in the result; the others concurred.