Opinion
July 13, 1878.
The city of Providence condemned as a public highway a strip of mortgaged land. The proceedings were under "An act in relation to the laying out, enlarging, straightening, or otherwise altering streets in the city of Providence," as printed in 4 R.I. 230, but no notice was given to the mortgagee. After the condemnation the mortgagee sold the balance of the mortgaged premises under the powers of the mortgage, without obtaining a sufficient sum to satisfy his claim. He then filed a bill in equity against the city of Providence and the mortgagors, praying for a foreclosure of his mortgage on the strip of land taken for a highway: Held, that he was entitled to the relief prayed for. Pettis v. City of Providence, 11 R.I. 372, affirmed.
BILL IN EQUITY for foreclosure.
Tillinghast Ely, for complainant.
Nicholas Van Slyck, City Solicitor, for respondents.
On July 22, 1871, George D. Flagg, and Mercy A., his wife, being owners in the right of the wife of an estate on the east side of Battey Street, so called, mortgaged it to the complainant to secure the payment of $15,000 in one year, with interest at seven per cent., payable semi-annually, in advance. The mortgage was duly acknowledged and recorded. Subsequently the city of Providence proceeded, under the act entitled "An act in relation to the laying out, enlarging, straightening, or otherwise altering streets in the city of Providence," of January, 1854, see 4 R.I. 230, to widen Battey Street by adding to it a strip ten feet wide on each side, thereby taking 2,010 20/100 square feet of the land mortgaged as aforesaid. The complainant had no notice of the proceeding, no personal notice having been issued to it, and did not learn of the proceeding until after the report of the commissioners, which contained no mention of the complainant, had been confirmed. After the street had been so widened, the mortgagors having long been in default, the complainant sold, under a power contained in the mortgage, all the mortgaged estate except what was taken to widen the street. The proceeds of the sale were not sufficient to satisfy the mortgage by $1,597.32, as the complainant alleges. The complainant brings this bill to foreclose the mortgage for that amount upon the strip taken to widen the street, claiming that, inasmuch as it was not notified of or made a party to the proceeding, the proceeding was, to the extent of its interest, irregular and void.
We think the complainant is entitled to a decree of foreclosure. The act under which the street was widened requires the commissioners of estimate and assessment, before making their estimate and assessment, to give notice thereof to all persons interested in the land required, by publication in two newspapers. Such a notice was published, omitting, however, the name of the complainant. The act also directs the commissioners in making report to set forth the names of persons interested in lands taken or assessed, designating their respective lots, with the loss and damage, benefit and advantage to each. The complainant was not named, it had no damages awarded to it, and, not being named, it did not receive notices from the city clerk and the Supreme Court, as required by the act. The proceeding was too defective in these particulars to bind the complainant. The record does not show any legal condemnation of its interest. The case is essentially the same as Pettis v. City of Providence, 11 R.I. 372.
It is urged that the complainant has been guilty of gross laches and delay in prosecuting his claim and ought to be estopped. We do not find any sufficient ground of estoppel. We grant relief according to the prayer of the bill.
Decree accordingly.