Gillette v. Abraham
| Decision Date | 08 November 1919 |
| Docket Number | 4546 |
| Citation | 174 N.W. 745,42 S.D. 316 |
| Parties | ED. E. GILLETTE, Plaintiff and appellant, v. HENRY J. ABRAHAM, Defendant and respondent. |
| Court | South Dakota Supreme Court |
HENRY J. ABRAHAM, Defendant and respondent. South Dakota Supreme Court Appeal from Circuit Court, Tripp County, SD Hon. William Williamson, Judge #4546--Reversed Doherty & Talbot Attorneys for Appellant. Charles A. Davis Attorneys for Respondent. Opinion filed November 8, 1919
Defendant held a second mortgage against land belonging to plaintiff. The land was situate in this state. The mortgage was of record, and it contained a power of sale. There being default in the payment of the debt secured, defendant exercised the power of sale, purchased the land at the sale, and, at end of the statutory period for redemption, received a sheriff's deed on such sale. Plaintiff thereafter brought this action, seeking to have the title to said land quieted in him. It is evident that plaintiff's theory is that the foreclosure was void, and not that the foreclosure was voidable. Upon the latter theory he would have no standing in court, as he did not seek to do equity by bringing into court the amount of the overdue indebtedness. The facts upon which plaintiff attacked the foreclosure and which facts are undisputed, were: (a) That the published notice of sale gave the date of the mortgage to be "December 20, 1912," when the true date thereof was "September 20, 1912"; (b) that the amount claimed in such notice as the amount due on the mortgage was largely in excess of the true amount due. The trial court sustained the sale and quieted the title in defendant. From the judgment so quieting title and from an order denying a new trial, this appeal was taken; and the only question before us is the correctness of the holding of the trial court sustaining the foreclosure sale.
Respondent urges that this court has virtually disposed of any question dependent upon the erroneous statement in the notice as to date of mortgage by its opinion in Iowa Investment Co. v. Shepard, 66 N.W. 451, where the court stated:
"Mere inaccuracies, not calculated to be misleading, are insufficient to invalidate a sale, in the absence of a claim that any one has been injured."
To determine just what this court meant by "inaccuracies," one needs to examine the facts in the Shepard case. But, first, we would correct an erroneous statement made in the opinion in that case. The court said:
"Evidently the object of the notice contemplated by statute is to fully advise all interested persons and the general public of the existence of conditions which authorize a foreclosure by advertisement."
If such were the object of the notice, our statute would require that it recite the existence of the facts upon which the right to foreclosure—to exercise the power of sale—depends; the notice would have to recite the existence of the matters set forth in section 2877, Rev. Code 1919. The purpose of the notice is clearly shown by the things which must appear therein. Section 2880, Rev. Code 1919, provides:
From such notice interested parties should be able to identify the mortgage; learn who were and are the parties thereto; know the amount of lien claimed against the property; what property is mortgaged; and when and where to attend if interested in the sale. In the Shepard case, it was not erroneous statements in the notice with which the court had to deal—there were no erroneous statements. The court stated that the "syntax and grammatical construction of the notice" were open to criticism; it held that, though inaccurate in language, the notice did fairly specify truthfully everything prescribed by the statute; and, in support of its conclusion that such "mere inaccuracies ... are insufficient to invalidate a sale, ..." it cited four cases, in every one of which, as in the case before it, there were inaccuracies of language in the notices, and yet the courts had held that, under a proper construction of the language used in each of said cases, every statutory requirement as to contents of notice was complied with. It is therefore clear that this court, in the Shepard case, in the use of the word "inaccuracies," did not have in mind a case where the notice, when fairly construed, failed to specify all that the statute requires, or where the notice contained an erroneous specification.
It is perfectly clear that the error in the notice before us was unintentional, and appellant has made no claim that either he or any one else was misled by the error therein. Respondent has cited several cases where, under such facts, the sale has been upheld; but an examination of these cases reveals the existence in every case of the further fact—which was expressly given weight by the court in each case—that the notice gave such reference to the record of the mortgage as directed one to such record, and an examination of the record would in each ease reveal and correct the error. McCardia v. Billings, 88 AmStRep 729; Turansky v. Weinberg, 211 Mass. 324, 97 N.E. 755; Brown v. Burney, 128 Mich. 205, 87 N.W. 221; Lau v. Scribner, 197 Mich. 414, 163 N.W. 914; Reading v. Waterman, 46 Mich. 107, 8 N.W. 691.
We should have no hesitancy in sustaining the lower court if the notice now before us had contained any reference to the record of the mortgage; but no case has been cited, and we know of none, wherein it has been held that a notice, defective in that it fails to specify, or makes a false specification as to one of the matters which the statute says "must" be specified, will support a foreclosure sale in the absence of some such reference to the record as can be fairly held...
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