Beaufort v. Warwick Credit Union, 79-160-A

• Decision Date: 15 December 1981
• Docket Number: No. 79-160-A,79-160-A
• Citation: 437 A.2d 1375
• Parties: Raymond R. BEAUFORT et al. v. WARWICK CREDIT UNION et al. ppeal.
• Court: Rhode Island Supreme Court

Page 1375

437 A.2d 1375

Raymond R. BEAUFORT et al. v. WARWICK CREDIT UNION et al.

No. 79-160-Appeal.

Supreme Court of Rhode Island.

Dec. 15, 1981.

Thomas L. McDonald, Providence, for plaintiffs.

Hinckley, Allen, Salisbury & Parsons, Robert W. Lovegreen, Providence, Leo X. McCusker, Warwick, for defendants.

OPINION

KELLEHER, Justice.

This is a Superior Court civil action in which the plaintiffs, Raymond R. Beaufort, Louise B. Beaufort, and R. A. Beaufort & Sons, Inc., seek to set aside the mortgage foreclosure on two parcels of real estate located in the city of Warwick. The defendants are the mortgagee, Warwick Credit Union, and Charles R. Blackmar and his wife, Marie. The Blackmars purchased one of the parcels from the credit union. (Hereinafter we shall refer to the plaintiffs as Beaufort; in referring to the defendants, we shall restrict ourselves to the defendant mortgagee, hereafter the credit union. As will be seen, there is no necessity that we make any further reference to the Blackmars.)

The controversy was resolved in the Superior Court by way of cross motions for summary judgment. Beaufort's motion is based upon his claim that the credit union failed to comply with the statutory requirements regarding notice of a foreclosure of a real estate mortgage containing a power of sale. The credit union in its motion insists that in foreclosing the mortgages in question, it had touched all the bases. The trial justice granted the credit union's motion and denied Beaufort's motion. We affirm.

The pertinent statutory mandates are to be found in G.L.1956 (1969 Reenactment) §§ 34-11-22 and 34-27-4. Section 34-11-22 in its pertinent portions authorizes the sale of real estate by mortgagee at public auction upon a breach by the mortgagor after

"first giving notice at (sic) the time and place of sale by publishing the same at least once each week for three (3) successive weeks in a public newspaper published daily in the city in which the mortgaged premises are situated; and if there be no public newspaper published daily in the city in which the mortgaged premises are situated, * * * then * * * (6) if the mortgaged premises are situated in any of the counties of Bristol, Kent or Washington, * * * in some public newspaper published daily in the county in which the mortgaged premises are situated or in a public newspaper published daily in the city of Providence * * *."

Section 34-27-4 further provides that whenever real estate is to be sold pursuant to a power of sale contained in a mortgage, the first publication of notice must be at least twenty-one days prior to the date of sale, with the first day of the publication being part of the computation.

One of the two parcels in question is located in Warwick at 145 Long Street. Notice of the foreclosure sale scheduled for August 3, 1976, was given in the Pawtuxet Valley Daily Times (the Times) on July 12, 19, 26, and August 2, 1976. The second parcel is also situated in Warwick at 21 Blake Street. The notice regarding a foreclosure sale scheduled for August 17, 1976, at this address was published in the Times on July 26, August 2, 10, and 16, 1976.

Beaufort, in seeking to set aside the foreclosure sales, contends that (1) the Times neither is a "daily" newspaper nor is it "published" within the city of Warwick and (2) the notice that was filed did not satisfy the statutory command for the three-week interval set forth in § 34-27-4.

Beaufort obviously believes that a "daily" newspaper is one that is circulated to the reader every day of the week. An affidavit executed by the Times's circulation manager states that the paper is circulated six days a week, excluding Sundays and holidays. We would note that when this issue has arisen, one court has pointed out that ordinarily the term "daily newspaper," when used in the context of statutes requiring the giving of legal notice, is used in contradistinction to such terms as "weekly newspaper" or "semiweekly newspaper," Wilson & Co. v. Petzold, 116 Ky. 873, 76 S.W. 1093 (1903); other courts have held that in its popular sense the term "daily newspaper" can refer to a paper that is published six days a week ¹ or to a paper that is published every day except Saturdays, Sundays, and legal holidays ² or to a paper that is published five days a week. ³ We feel no hesitancy whatsoever in subscribing to the judicial sentiments expressed above. We have every confidence that the Times's readers, if asked, would certainly view that publication as a daily newspaper despite the fact that the paper boy/girl does not deliver on Sundays or on such holidays as January 1, July 4, Thanksgiving Day, or Christmas Day.

Beaufort next argues that the Times was not "published" in the city of Warwick as required by the mandate found in § 34-11-22 because the publication took place in the town of West Warwick. In supporting this position, Beaufort first points to the January 13, 1978 affidavit in which the Times's circulation manager makes it clear that the Times is printed and first put into circulation in the town of West Warwick, a municipality neighboring the city of Warwick. Beaufort, relying on an affidavit furnished by the Journal's circulation manager, claims that the only newspaper published in Warwick is the Providence Journal. In his affidavit, the manager indicates that on every weekday six different editions of the Providence Journal are printed in the city of Providence. One of the six editions is entitled "West Bay Edition." The Journal's West Bay Edition is delivered by truck from Providence to three of Rhode Island's municipalities, Cranston, Warwick, and East Greenwich. The manager also avers that the West Bay Edition is "first circulated and distributed to the public in the cities of Cranston and Warwick and the town of East Greenwich."

On the other hand, the credit union argues in the alternative. It first claims that the Times is published in Warwick, but if this is not the case, then the Times takes the position that there is no daily paper "published" in Warwick, and thus that portion of § 34-11-22 which allows a notice of a foreclosure sale to be published in any daily newspaper published in Kent County comes into play.

A word may have a myriad of meanings depending upon the context in which the word is found. However, Webster's Third New International Dictionary describes the fundamental meaning of the word "publish" as "to declare publicly, make generally known." Many courts have considered whether "publish" is synonymous with "print." However, the distinction between these two terms was made quite clear in Wolfe County Liquor Dispensary Ass'n v. Ingram, 272 Ky. 38, 43, 113 S.W.2d 839, 842 (1938), where the court noted: "A book may be printed without being published. It is published only when it is offered for sale or put in general circulation." (Citation omitted.)

Here, our task is to ascertain the legislative intent that gave rise to the enactment of § 34-11-22 and, if possible, to effectuate that intent. Gott v. Norberg, R.I., 417 A.2d 1352 (1980); Vaudreuil v. Nelson Engineering and Construction Co., R.I., 399 A.2d 1220 (1979). An examination of § 34-11-22 reveals a clear intent on the part of the General Assembly that notice of a mortgage foreclosure sale was to be given thorough local dissemination by having the notice published in a daily newspaper having ties with the municipality in which the real estate was located, and if such a geographical location was not possible, then the notice was to be published in a paper in the county in which the property was situated. Thus, the Legislature was attempting to ensure that any published notice required by statute come to the attention of as many readers in the locality of the property concerned as possible.

The intent to which we have just alluded might have been best explained by Justice Oliver Wendell Holmes when, in construing a Massachusetts mortgage foreclosure statute that is similar to our § 34-11-22, he defined the place of publication as "the home office of the paper," "the one place of management" where "the paper was given to the world." Rose v. Fall River Five Cents Savings Bank, 165 Mass. 273, 275, 43 N.E. 93, 93-94 (1896). Similarly, the home-office concept was adopted in State v. Bass, 97 Me. 484, 490, 54 A. 1113, 1115 (1903), where the court ruled that the place of publication of a newspaper is "where it is first issued to be delivered or sent by mail or otherwise to its subscribers."

Later, the New Jersey Supreme Court in City of Plainfield v. Courier-News, 72 N.J. 171, 187, 369 A.2d 513, 521 (1976), in applying a gloss to the thoughts expressed by Justice Holmes, emphasized that a so-called publication location is that place where the paper is given to the world and went on to say that this giving occurs at the place where "(a)ll final...