Finlayson v. Peterson
| Decision Date | 10 June 1896 |
| Citation | 67 N.W. 953,5 N.D. 587 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Grand Forks County; Templeton, J.
Action by Alexander Finlayson against Peter C. Peterson. Judgment for defendant, and plaintiff appeals.
Bangs & Fisk, and W. H. Standish, for appellant.
J. H Bosard, for respondent.
The ultimate problem to be solved in this case is the legality of certain foreclosure proceedings. The plaintiff is conceded to be the owner in fee simple of the premises in question, if such proceedings are void. On the other hand, it is also agreed that her title has been destroyed, and is fully vested in the defendant, if those proceedings are valid. The only point urged against their legality is that the first notice of sale was not published at least 42 days before the day of sale. There were six different publications, and they were all exactly a week apart. But the day of sale was less than a week after the last publication. The question before us, then, is whether the statute, as it stood at the time of this foreclosure, required that full six weeks should intervene between the day of first publication and the day fixed for sale. The language of the statute is that the notice must be given "by publishing the same for six successive weeks at least once in each week." The word "for," in this statute, means "throughout," or "during the continuance of." 3 Cent. Dict. p. 2314, definition 15 of word "for." It is obvious that a notice of sale has not been published during the continuance of a week, when the day of sale follows the day of publication at an interval of less than a week. Five weeks added to this fragment of a week will not constitute six weeks, unless a part of a week--the added fragment--is equal to a whole week. We agree with counsel for plaintiff that the statute contains two elements. The first requires a publication "for," or "during the continuance of," six weeks, and nothing short of a publication for forty-two days will satisfy this branch of the act. The other requires at least six publications, and that one of them shall be in each of the six weeks between the first publication and the day of sale. If the statute had declared that the notice should be published once a in each of six successive weeks, its meaning would have been different. But it does not so declare. Its explicit provision is that the notice shall be published for six successive weeks. We find our construction in harmony with the views of many courts, although some of the cases cited may perhaps be regarded as not directly in point, owing to a difference in the language of some of the statutes interpreted. Bacon v. Kennedy, 56 Mich. 329, 22 N.W. 824; Wilson v. Insurance Co., 12 C.C.A. 505; 65 F. 38; Boyd v. McFarlin, 58 Ga. 208; Pratt v. Tinkcom, 21 Minn. 142; Ogden v. Walker, 59 Ind. 460; Bunce v. Reed, 16 Barb. 347, 350, 351; Brod v. Heymann, 3 Abb. Prac. (N.S.) 396; Richardson v. Bates, 23 How. Pr. 516; Parsons v. Lanning, 27 N.J.Eq. 70; Early v. Doe, 57 U.S. 610, 16 How. 610, 14 L.Ed. 1079; In re North Whitehall Tp., 47 Pa. 156; Security Co., v. Arbuckle, 123 Ind. 518, 24 N.E. 329; Smith v. Rowles, 85 Ind. 264; Market Nat. Bank v. Pacific Nat. Bank, 89 N.Y. 397. See, also, Olcott v. Robinson, 20 Barb. 148, and dissenting opinion in Olcott v. Robinson, 21 N.Y. 150. The following cases are more or less in defendant's favor. Olcott v. Robinson, 21 N.Y. 150; Wood v. Morehouse, 45 N.Y. 368; Sheldon v. Wright, 7 Barb. 39; De Peyster v. Michael, 6 N.Y. 467; Chamberlain v. Dempsey, 13 Abb. Prac. 421; Pearson v. Bradley, 48 Ill. 250; State v. Yellow Jacket Silver Min. Co., 5 Nev. 415; Dexter v. Shepard, 117 Mass. 480.
But it is urged that an act passed March 8, 1889 (chapter 38, Laws 1889,) is decisive against the plaintiff. That act declares "Whenever in any act or statute of the Territory of Dakota providing for the publishing of notices, the phrase successive weeks is used, the term weeks shall be construed to mean calendar weeks, and the publication upon any day in such weeks shall be sufficient publication for that week, provided, that at least five days shall intervene between such publications, and all publications heretofore or hereafter, made in accordance with the provisions of this act, shall be deemed legal and valid." There is nothing in this statute which in terms relates to the time that must elapse between the first publication and the day of sale. It might be urged with much force that that act was passed to settle a somewhat mooted question,--whether each successive publication must be made on the same day of the week,--and that for this purpose, and for this purpose only, it declares that a week means a calendar week. There has been a division of judicial opinion whether the notice should be published on the same day in each week, although the weight of authority is against the necessity of publishing the notice on the same day in each week. Ronkendorff v. Taylor's Lessee, 29 U.S. 349, 4 Peters 349, 7 L.Ed. 882; Wood v. Knapp, 100 N.Y. 109, 2 N.E. 632; Bachelor v. Bachelor, 1 Mass. 256; Raum v. Leach, 53 Minn. 84, 54 N.W. 1058; Loan Soc. v. Thompson, 32 Cal. 347; Steinle v. Bell, 12 Abb. Prac. (N.S.) 171. Under these decisions, it perhaps would not be necessary to publish the notice in every calendar week, provided there was one insertion in each week commencing to calculate from the day of the first publication. If a notice should be published on Friday, the first week would not expire until the next Thursday, and the new week would not begin until the next Friday. Hence a second publication on the Wednesday of the week after might be in time. And yet in such a case there would be a gap of an entire calendar week during which no publication would be made. Now, this statute prevents this. While it recognizes the soundness of the rule supported by the great majority of the cases, that the publication need not be made on the same day in each week, it yet limits that rule by declaring that, for the purpose of a publication once a week in each week, the word "week" means a calendar week. The result is that in cases governed by this act there must be one publication in each calendar week, no matter on what day the previous publication was made. There is also a further limitation that at least five days must intervene between every two publications. There is much force, however, in the argument that it was the purpose of the legislature to declare by this act that a publication on the last day of a calendar week should relate back to the beginning of that week, and be a publication for that week, as effectually as though the notice had been published on the first day thereof, instead of on the last. But, even assuming this to be the meaning of the statute, the defendant cannot avail himself of its provisions. It was passed four years after the foreclosure proceedings in question were consummated. If it be regarded as a legislative interpretation of the existing law, it can have no conclusive force. Construction of statutes is a judicial, and not a legislative, function. In cases of doubt a legislative construction is given some weight. But no court can allow the lawmaking power to alter by legislative enactment the meaning of a statute so as to affect vested rights. In 1885; when these foreclosure proceedings were had, the meaning of the statute under which the mortgagee foreclosed his mortgage was plain, and, as that statute required that the first publication should be made 42 days before the day fixed for sale, no subsequent law could affect the rights of the mortgagor to treat the foreclosure as void. The legislature cannot, by the device of construing a...
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