Donald v. Commercial Bank of Magee

• Citation: 132 Miss. 578,97 So. 12
• Decision Date: 02 July 1923
• Docket Number: 23364
• Court: United States State Supreme Court of Mississippi
• Parties: DONALD et al. v. COMMERCIAL BANK OF MAGEE et al

97 So. 12

132 Miss. 578

DONALD et al. v. COMMERCIAL BANK OF MAGEE et al

No. 23364

Supreme Court of Mississippi

July 2, 1923

Division B

Division B. January 1, 1920

1 TIME. Advertisement for sale of land under deed of trust held sufficient; "three consecutive weeks."

Under section 2772, Code 1906 (section 2276, Hemingway's Code) which provides that a sale of land under a deed of trust shall be advertised for "three consecutive weeks" preceding such sale, in a newspaper, and the advertisement duly appeared for three consecutive weeks, and the sale was made seven days after the last publication, this was a compliance with the law.

2 TIME. First day of publication of advertisement for sale of land under deed of trust excluded and day of sale included in computing time for advertisement.

In computing this time the first day of the publication is excluded and the day of sale included both under the common law and section 1607, Code 1906 (section 1374, Hemmingway's Code).

HON. BEE KING, Chancellor.

APPEAL from chancery court of Simpson county, HON. BEE KING, Chancellor.

Suit by G. L. Donald and others against the Commercial Bank of Magee and others. From an order sustaining a demurrer to the bill, plaintiffs appeal. Affirmed.

Decree affirmed.

Chalmers Alexander, for appellant.

The point at issue is the sufficiency of the advertisement prior to foreclosure sale. The trustee, D. M. Russell, made publication in the Magee Courier on January 12th, January 19th, and January 26th and he sold on February 2nd, which was the date advertised for sale. Was there a publication of three weeks, twenty-one days "between the first publication and the day for the . . . thing for which publication shall be made," to quote from the statute, Code, 1906, section 1607.

What does section 2772, Code 1906, mean by this group of three words, reading, "three weeks preceding?" Under the Code Chapter on Definitions, we have two statutes, one defining the rule for computing the number of days of legal notice (to-wit, Code of 1906, section 1606), and the other defining the rule for making newspaper publication "for three weeks," (Code 1906, section 1607). These two Code sections are different and are based on different reasoning and are not analogous to each other. If the rule had been the same as regards days and weeks, the two periods of time, to-wit days and weeks, would have been included on and under one Code Section. The days must be twenty-one in number between January 12th and February 2nd, for the Code of 1906, section 1607, distinctly says that there must be three weeks (i. e. twenty-one days) between--note the word, between,--the first publication of January 12th and the day of sale, February 2nd. Counting the days "between" we find only twenty. It seems to the appellant, therefore, that there has not been a three-weeks' foreclosure advertisement of sale. We refer to the decisions, however, showing the understandings of our courts and law-writers as to the meaning of the phrase "three weeks between." Enochs v. Miller, 60 Miss. 19; 26 R. C. L., 18, 744; Atkins v. Blyleston, 39 Am. Dec. 692 (Mass.); Weir v. Thomas, 44 Neb. 507; 48 Am. St. Rep. 741; State v. Michel, 78 Am. St. Rep. and note; 140 Ala. 7; Delaware R. R. Company v. Mehrhof Bros. Co., 53 N.J.L. 205, Footnote citation, 78 Am. St. Rep. 386; People v. Hornbeck, 61 N.Y.S. 978, 30 Misc. 212; Kendall v. Kingsley, 120 Mass. 94, 95; Wimnas v. Thorp, 87 Ill.App. 297, 298; Fowler v. Rigney (N. Y.), 5 Abb. Prac. (N. S.) 182, 184; Cook v. Gray, 6 Ind. 335, 337; Bunce v. Reed (N. Y.), 16 Barb. 347, 352; Robinson v. Foster, 12 Iowa 186, 188; Johnson v. State, 141 Ala. 7, 19 Am. St. Rep. 17, 37 So. 421; Simpson v. Robert, 35 Georgia, 180.

In conclusion, since we have the words "between" as set forth in one code section (Code 1906, sec. 1607) relative to number of weeks prescribed; and since we have the word, "preceding" in the phrase, "preceding such sale," and since statutes must be construed strictly and not generally; it must follow that for one as trustee to make foreclosure of land deed of trust by advertisement, etc., he must see to it that, as the code uses the words "between" and "preceding," there must be full twenty-one days between the first publication's close and the day of sale; and that such twenty-one days shall one and all precede the day of sale.

Wells, Stevens, & Jones, R. C. Russell, and Scott & Scott, for appellee.

The bill of complaint shows upon its face that the sale made on the 2nd day of February, 1912, was legal and valid and binding upon the complainants, because under the rule both at common law and under the statute law of Mississippi, in computation of time the proper method is to exclude the first and to include the last day, upon which calculation it will be readily seen that the sale was legally made. The statutes controlling sales under deeds of trust are as follows, to-wit: Section 2772, Code of 1906 (section 2276, Hemingway's Code); Section 1606 of the Code of Mississippi of 1906 (section 1373, Hemingway's Code); Section 1607 of the Code of 1906 (section 1374, Hemingway's Code).

It is well settled at common law that in computation of time the first day is excluded and the last day included. 45 Century Digest--Time--, section 22, citing the following authorities: Smith v. Force, 31 Minn. 119; Young v. Krueger, 92 Wis. 361; Garner v. Johnson, 22 Ala. 494; Baxter v. Bennett, 33 Ga. 146; English v. Osborn, 59 Ga. 392; Forsyth v. Warren, 62 Ill. 68; Womack v. McAhren, 9 Ind. 6; Martin v. Reed, 9 Ind. 180; Blair v. Davis, 9 Ind. 357; Monroe v. Paddock, 75 Ind. 422; Reigelsberger v. Stapp, 91 Ind. 311; Keer v. Haverstick, 94 Ind. 178; Beckwith v. Douglas, 25 Kan. 229; Pollard v. Yoder, 9 Ky. (2 A. K. Marsh), 264; Ogden v. Redman, 10 Ky. (3 A. K. Marsh), 234; Taylor v. Harris, 82 N.C. 25; Bartow v. Abbe, 16 Ohio 408; Black v. John, 68 Pa. (18 P. F. Smith) 83; Buist v. Mitchell, 8 Briv. 485; Dickinson v. Lee, 42 Tenn. (2 Cold.) 615; Bellmer v. Blessington, 136 Cal. 3; Cefret v. Burch, 1 Blackf. 400; Cheek v. Preston, 34 Ind.App. 343; Dills v. Zeigler, 1 G. Green 164 (48 Am. Dec. 370); Matthews v. Arthur, 61 Kan. 455; Stewart v. Barber, Harwell, N. P. 101; Justice v. Meeker, 30 Pa. S.Ct. 207; Williams v. Halford, 64 S.C. 306. The law is well settled in Mississippi under Mississippi decisions. From the very earliest days of Mississippi jurisprudence, long before there was any definition and rule in the statute as to how time should be computed, it was laid down by this honorable court that under the common law since there was no fraction of a day in contemplation of law, that in computing time, the first day should be excluded and the last day included. And this, too, in construing statutes where the word "between" so much emphasized by counsel for appellant, appears in the statute. Hall & Duglass v. A. A. Cassidy (3 C.), 25 Miss. 48; H. F. Morrison et al. v. Jane A. Gaillard, 25 Miss. 194; Rainet & Richards v. Planters Bank of Tennessee (4 C.), 26 Miss. 177; Curtis v. Blair (4 C.), 26 Miss. 309; Mitchell et al. v. Woodson (8 G.), 37 Miss. 567; Enochs v. Miller et al., 60 Miss. 19; Skinner v. Wilson, 61 Miss. 90, construing section 1743 of the code of Mississippi of 1880; Nickles v. Kendrick, 76 Miss. 334, arising under section 1525 of the Code of 1892.

A sale under a deed of trust can legally be made when the sale has been published for three issues of the paper. That is, once each week for three weeks. But that sale can legally be made under the previous decisions of this court only on one certain date, and that is the 22nd day, computing the time by excluding the date of the first publication, and including the date of sale. That is to say further, to illustrate, that if the advertisement first appears on the first of the month, the second advertisement on the 8th, and the last on the 15th, that the sale can be legally made only on the 22nd day of the month. Second, a sale made under the above rule cannot be made on the 15th, 16th, 17th, 18th, 19th, 20th, or 21st, because in that instance the requirement of the statute has not been met to the effect that--"But there must be three weeks between the first publication and the date for the appearance of the party or other thing for which the publication shall be made." Under Lake v. Castleman, 116 Miss. 175; Planters, etc. v. Braxton, 120 Miss. 470; Maris, et al. v. Lindsey, 124 Miss. 742, the sale could not be made on the 23rd day, or any day thereafter without a fourth publication of the notice of sale on the 22nd, because unless the fourth publication were made, the date of the sale would be more than seven days from the date of the last publication, and under these rulings of the court, the sale would be void.

Argued orally by Chalmers Alexander for appellants and W. C. Wells and Frank Scott, for appellee.

OPINION

SYKES, P. J.

The complainants in their bill seek to have declared invalid a sale of certain lands under a deed of trust. Among other provisions in the deed of trust is one which states that the trustee may sell "after giving notice for three consecutive weeks in some newspaper published in said county." The notice was published in the newspaper on January 12th, 19th, and 26th, and the sale was made on February 2d. A demurrer was sustained to the bill; the court in effect thereby holding that proper notice by publication was given and a valid sale held.

Section 2772, Code of 1906, section 2276, Hemingway's Code, provides:

"Sale of said lands shall be advertised for three consecutive weeks preceding such sale, in a newspaper published in the county."

It is the contention of the appellants (complainants in the lower court) that there was not an advertisement published in the...