Dewitz v. Joyce-Pruitt Co.

• Decision Date: 28 July 1915
• Docket Number: No. 1780.,1780.
• Citation: 20 N.M. 572,151 P. 237
• Parties: DEWITZ ET AL.v.JOYCE-PRUITT CO.
• Court: New Mexico Supreme Court

20 N.M. 572

151 P. 237

DEWITZ ET AL.

v.JOYCE-PRUITT CO.

No. 1780.

Supreme Court of New Mexico.

July 28, 1915.

Syllabus by the Court.

Under section 4647, Code 1915, which requires notices of sales to be published “once each week for four successive weeks,” does not require that full four weeks shall elapse between the first insertion of the notice in the newspaper and the day of sale, but the sale may be had at any time not less than three days after the fourth and last insertion.

The informality in a notice of sale under a decree of foreclosure of a mortgage, by reason of a failure to state, in terms, the amount of principal and interest to date of sale, as required by section 2198, Code 1915, but where the amount is stated as the amount for which the property will be sold, is not sufficient to avoid the sale.

The fact that property is advertised to be sold under a foreclosure decree for a certain sum, and is sold for a lesser sum, does not prevent confirmation of the sale in the absence of a showing that it sold for less than its value, or that the mortgagors were misled to their prejudice thereby.

Appeal from District Court, Eddy County; Richardson, Judge.

Action between Elise Dewitz and Paul E. Dewitz, and the Joyce-Pruitt Company, a corporation. From a judgment confirming a mortgage foreclosure sale, Elise and Paul E. Dewitz appeal. Affirmed.

Under section 4647, Code 1915, which requires notices of sales to be published “once each week for four successive weeks,” does not require that full four weeks shall elapse between the first insertion of the notice in the newspaper and the day of sale, but the sale may be had at any time not less than three days after the fourth and last insertion.

Bujac & Brice, of Carlsbad, for appellants.

S. D. Stennis, Jr., of Carlsbad, for appellee.

PARKER, J.

This is an appeal from a decree confirming a sale under a mortgage foreclosure. Upon the coming in of the referee's report of sale, the appellants filed objections to the confirmation of the sale, setting up various objections, some of which are available and some are not.

[1] 1. The proposition principally relied upon is that the notice of sale was not given as required by statute. The argument is made that under the terms of section 4647, Code 1915, which directs that notices of this character shall be published “once each week for four successive weeks,” requires that at least 4 weeks, or 28 days, expire between the first insertion of the notice in the newspaper and the date of sale. Provisions similar to these have been before the courts, and two lines of decisions are plainly marked out. In some of the states a provision like ours has been held to require only 4 insertions of the notice in a weekly newspaper, and not to require the expiration of the full 28 days between the first notice and the date of sale. Thus, in Hollister v. Vanderlin, 165 Pa. 248, 30 Atl. 1002, 44 Am. St. Rep. 657, the statute required an execution sale to be advertised “once a week during three successive weeks,” and the court held that an advertisement in each of the 3 successive weeks was sufficient, although there may not have been 21 full days between the first advertisement and the date of sale. On the other hand, in Bacon v. Kennedy, 56 Mich. 329, 22 N. W. 824, the statute provided that notice should be published “once a week for twelve successive weeks” in a statutory foreclosure of a mortgage. The court held that 12 full weeks must elapse between the first notice and the sale. See, also, on this subject, 2 Freeman on Ex. (3d Ed.) § 285e, and note to Hoffman v. Anthony, 6 R. I. 282, 75 Am. Dec. 701, 708. There is a provision in our statute, however, which is determinative of the question. The section above referred to contains the following:

“If such publication shall be notice of the pendency of a suit, in a...