Home Owners' Loan Corporation v. Stevens

• Decision Date: 12 January 1940
• Docket Number: 6070
• Citation: 98 Utah 126,97 P.2d 744
• Parties: HOME OWNERS' LOAN CORPORATION v. STEVENS et al
• Court: Utah Supreme Court

97 P.2d 744

98 Utah 126

HOME OWNERS' LOAN CORPORATION v. STEVENS et al

No. 6070

Supreme Court of Utah

January 12, 1940

Appeal from District Court, Sixth District, Sevier County; H. D Hayes, Judge.

Action by the Home Owners' Loan Corporation against Wilford Stevens, Joseph F. Peterson and wife, and others, to foreclose a mortgage. From a judgment for defendants Peterson, plaintiff appeals.

Reversed and remanded.

William M. Shay, of Cedar City, and Samuel J. Carter and C. E Henderson, both of Salt Lake City, for appellant.

N. J Bates, of Richfield, for respondents.

McDONOUGH Justice. PRATT, J., WOLFE, Justice, concurring. LARSON, Justice, MOFFAT, Chief Justice, dissenting.

OPINION

McDONOUGH, Justice.

Plaintiff, appellant here, instituted this action in the district court to foreclose a mortgage executed by defendants Wilford Stevens and Ruby Stevens, his wife, to secure a loan from the appellant. As to the defendants, other than the Stevenses, the complaint alleged that each of them "claims a lien against or interest as mortgagee, creditor, trustee, or otherwise in the property described in the said mortgage," and that such claim or interest is subsequent to and in all respects subject to the lien of plaintiff under its mortgage. It prayed a decree foreclosing such lien.

All defendants, except respondents Joseph F. Peterson and Josephine Peterson, defaulted or disclaimed. By their answer said respondents admitted that they claimed an interest in one parcel of the real estate described in plaintiff's complaint, denied that said claim was inferior or subject to the mortgage lien of plaintiff and alleged that they had purchased the described tract from Sevier County and had received a tax deed therefor; that they were the owners in fee of the described tract, free of any mortgage lien claimed by the plaintiff. They prayed a decree adjudging them to be such owners.

Plaintiff interposed to said answer a general demurrer which was overruled.

The trial court found for the answering defendants upon the issue raised by their answer, found that their tax title to the tract in question was valid and decreed them title thereto free of the lien of plaintiff's mortgage.

Plaintiff assigns two errors of the trial court, viz., that the court erred in overruling its demurrer to defendants' answer, and in making its conclusion of law and in entering judgment to the effect that the claim of defendants "is superior to the lien of plaintiff's mortgage." We shall first discuss the latter assignment.

Appellant's contention under this assignment is two-fold. First, it contends that under the findings of the trial court the respondents' tax deed is void because the notice given by the county of the May sale did not comply with the provisions of 80-10-68, R. S. U. 1933 (as amended by Chapter 62, Laws of Utah 1933). Secondly, it argues that conceding the validity of the "May sale" and of the subsequent purchase of the realty by respondent, the latter's tax title is nevertheless subject to the lien of plaintiff's mortgage because respondent had prior to the "May sale" received from the mortgagor a quit-claim deed to the property.

If appellant's position is correct as to the invalidity of the "May sale" and as to respondents' tax title being, because of the invalidity of such sale, subject to the mortgage lien, it will not be necessary to examine the other basis of the second assignment, nor to inquire into the sufficiency of the answer of respondent raised by the first assignment. We shall therefore first discuss the contention that statutory notice of the May sale was not given and that the sale proceedings thereunder were invalid and the tax deed of respondents void.

Section 68 of Chapter 10, Title 80, construction of which is involved, reads (as amended):

"Whenever a county has received a tax deed for any real estate sold for delinquent taxes, the board of county commissioners shall, during the month of May in each year, after publication, once a week for four consecutive weeks preceding the date of sale, in a newspaper having general circulation in the county or if no newspaper is published in the county, by posting in five public places in the county, offer for sale at the front door of the county court house, at the time specified in the notice, to the highest bidder, each parcel of real estate which has been conveyed to the county during the current year pursuant to the provisions of section 80-10-66 * * *."

Appellant argues that the foregoing requires not merely four publications before the date of sale, but that four weeks of publication must elapse prior thereto. In other words, it is argued that the statute prescribes not merely the number of publications but the duration of time of the notice. Appellant's assignment and brief presents to the court the problem of construing the statute, but cites no authorities in support of its contention. Respondents cite none to the contrary.

Numerous cases construe statutes or instruments which require publication once a week for a given number of weeks before sale of property at public sale. The various constructions thereof correspond, it appears, precisely with the possibilities. They may be divided into three groups: (1) those which hold that under such provision there must elapse between the date of first publication and the date of sale the number of days contained in the number of weeks specified in the statute or instrument. For instance, under such a rule Section 80-10-68 above would require twenty-eight days to elapse between the date of first publication and the date of sale. The Supreme Court of Oklahoma has so construed a statute requiring publication once a week for three successive weeks. Savery v. Board of County Comm'rs of Beaver County, 173 Okla. 284, 48 P.2d 275; Sarkeys v. Lee, 149 Okla. 287, 300 P. 383; Smith v. Bostaph, 103 Okla. 258, 229 P. 1039; Sitton v. Hernstadt, 106 Okla. 140, 233 P. 676. A New York statute, Tax Law, § 151, requiring that notice of tax sale be published "at least once in each week for six weeks" together with notice that "on a day at the expiration of said six weeks specified in such notice" the real estate would be sold, was construed to require that forty-two days should intervene between the first publication and sale. Bamonte v. Ocean Beach-Fire Island Co., 222 A.D. 676, 225 N.Y.S. 19, affirmed in 248 N.Y. 642, 162 N.E. 558. See, also, State ex rel. Compton v. Board of County Comm'rs, 18 Ohio App. 462; Walker v. Stuart, D. C., 261 F. 427.

(2) A second group construes such a statute or instrument as does the Supreme Court of Florida in Watson v. Beacon Operating Co., 114 Fla. 773, 154 So. 866, which holds that such a statute has been complied with when notice has been published in four consecutive weekly issues of a newspaper which publications have appeared prior to sale date, although twenty-eight days did not elapse between the first publication and the date of sale. In re Hegarty's Estate, 45 Nev. 145, 199 P. 81; State v. Yellow Jacket S. M. Co., 5 Nev. 415, Dewitz v. Joyce-Pruitt Company, 20 N.M. 572, 151 P. 237; Hollister v. Vanderlin, 165 Pa. 248, 30 A. 1002, 44 Am. St. Rep. 657.

The third view is that where a statute requires publication once a week for four consecutive weeks before date of sale it is necessary that publication be made in four successive calendar weeks preceding the calendar week in which the sale is held. Bush v. Growers' Finance Corporation, 176 Ga. 99, 167 S.E. 105; Smith v. Associated Mortgage Companies, 186 Ga. 121, 197 S.E. 222;Champion Box Co., v. Monatee Crate Co., 5 Cir., 75 F.2d 340.

An examination of these cases reveals that in some jurisdictions the differing constructions turn upon the wording of the statute or of some other statutory provision which points to the construction given, while in others the several constructions are of statutes of the same wording. They differ, however, in important respects from the one here under consideration.

Under Section 80-10-68, R. S. U. 1933 (as amended), hereinabove set out, the sale is to be held in the month of May "after publication, once a week for four consecutive weeks preceding the date of sale." The thought that the four consecutive weekly publications are to be made before the date of sale is conveyed by the words "after publication." The words "for four consecutive weeks preceding the date of sale" convey the thought that four consecutive weeks are to precede the date of sale in each of which weeks a publication is to be made, rather than the thought that four publications only are necessary at any time after which the sale may be held.

Contained in the same sentence with the provision fixing the requisite publications in a newspaper is the prescription of posting of notice in lieu of publication where no newspaper is published in the county, viz., "or if no newspaper is published in the county, by posting in five public places in the county." Except by referring back to the preceding part of the sentence, we find no designation of the length of time during which such notices shall remain posted. By referring to the phrase hereinabove adverted to, we find that the notice shall remain posted "for four consecutive weeks preceding the date of sale." Thus read as to the posting provision the statute would require that the notice remain posted for four weeks, that is, twenty-eight days, before the sale date.

Hence unless we can construe the words "for four consecutive weeks preceding the date of sale" as designating merely the number of publications when construed in connection with the words "after publication, once a week," and when construed with reference to the words "by posting in five public places in the...