Lake v. Castleman

• Decision Date: 10 December 1917
• Citation: 116 Miss. 175,76 So. 877
• Court: Mississippi Supreme Court
• Parties: LAKE ET AL. v. CASTLEMAN

76 So. 877

116 Miss. 175

LAKE ET AL. v. CASTLEMAN

Supreme Court of Mississippi

December 10, 1917

October 1917

Division B

APPEAL from the chancery court of Washington county, HON. E. N THOMAS, Chancellor.

Suit by Pauline Castleman against J. Albert Lake and others. From the decree rendered, Lake and others appeal.

The facts are fully stated in the opinion of the court.

Affirmed.

A. W Shands and G. G. Lyell, for appellant.

The bill was one to cancel and remove the alleged cloud upon title of appellee and to enjoin further foreclosure by appellants of their junior deed of trust.

In proceeding to advertise for such foreclosure, it was the theory of the appellants that the two sales by Cashin, Substituted Trustee, were void because the notices of sales were not published for the time required by the provisions of the deeds of trust and section 2772 of the Code of 1906. That is the sole ground of attack upon such two foreclosures; and, as before stated, is the only question in this case.

We turn now to the provisions of the two deeds of trust as to the time and manner in which the notices of sale were required to be given. Taking them up in their order of priority, we consider, first, the D/T executed March 13, 1909, to the Georgia State Savings Association.

It provided, Tr. 13, that "the trustee, or his successors, shall proceed to sell the said property at public outcry, to the highest bidder for cash, in front of the court house of said county (Washington) after advertising said proposed sale and posting notice of same for three consecutive weeks preceeding such sale as provided by section 2772 of Code of 1906 of the state of Mississippi, as amended, such sale to be made on any day except Sunday, at which sale the said Association may become a bidder." The case was tried upon an agreed statement of facts. See stipulations of Counsel.

It is therein agreed that Cashin, Substituted Trustee, advertised and published his sale notice for foreclosure of this D/T. in the Greenville Democrat, a daily newspaper published in the city of Greenville, on the following dates: October 8th, 15th, 22nd, and 29, 1914, and that the sale was made on November 2, 1914. The court knows, judicially, that the dates of publication were Thursday and that the sale day was Monday. It will be thus observed that an interval of from Thursday, October 29, until Monday, November 2nd., intervened between the last publication and the sale day. Appellants contend that such interval rendered the sale void.

Turn now to the next deed of trust that was foreclosed, that to the Grenada Bank, dated March 19, 1912. The record shows that the following was the provision of same for foreclosure by the trustee: "The trustee herein may take possession of said property and sell the same at public outcry, after giving legal notice of the time, place and terms of sale in the county in which the property is located."

Now it is agreed, that the notices of sale were published in the Greenville Democrat, a daily newspaper of following dates: July 7th, 14th, 21st, 28, 1914, and that the sale was made on July 31, 1914, and that the sale was made on July 31, 1914, the time fixed in said notice. The court knows, judicially, that the notices were published on Tuesday and that the sale was made on Friday.

As to this sale, appellants contended that it, too, was void for the reason that too much time elapsed between the last publication of the notice of sale and the day of sale.

In other words, it is contended that "a legal notice" within the purview of the two deeds of trust and section 2772 of the Code of 1906, was not given in either case.

If the sales were void, or either of them, it is obvious that the injunction should have been dissolved. Removing clouds upon titles p. 550, and authorities cited.

No attack was made by appellee upon the validity of the D/T. of appellants, except that it was subsequent in time to the two under which she deraigned her title. Appellant's right to foreclosure was clear unless the two sales by Cashin, Substituted Trustee, were valid.

Let us now consider the pertinent provision of section 2772 of the Code of 1906, "How lands sold under mortgages and deeds of trust." Omitting what is not here involved, it reads: "Sale of lands shall be advertised for three consecutive weeks preceding such sale, in a newspaper published in the county. . . ."

"No sale of lands under a deed of trust or mortgage shall be valid unless such sale shall have been advertised as herein provided, regardless of any contract to the contrary. An error in the mode of sale such as makes the sale void will not be cured by any statute of limitations, except as to the ten-year-statute of adverse possession."

Independently of the provisions of the statute, the law is settled that: "If the notices of sale are not made and published according to the power, the sale is absolutely void, not merely voidable, and no title passes to the purchaser" Perry on Trusts and Trustees (6 Ed.), 602, page 1009, 782, page 1288, 600t, page 1005; Enochs v. Miller, 60 Miss. 19; Allen v. Alliance Trust Co., 84 Miss. 319, 332.

As illustrative additional authorities, that the execution of powers is strictissimi juris, see Brief of Messrs. Percy & Campbell in the latter case at page 325. McMahan v. A. B. and L. Asso., 75 Miss. 965 969; McCaughn v. Young, 85 Miss 277, 289.

Briefly stated, our contention, as applied to each case is, that the words of the statute, 2772, "Sale of lands shall be advertised for three consecutive weeks preceding such sale" means the three weeks immediately preceding such sale; and that when the publication is in a daily paper that it is always necessary to publish the notice for such time immediately preceding the sale, and that unless that is done that the sale is void. That while it is true that the publication is a daily paper for once a week, for three weeks, is satisfactory under the statute, 2772 and 1607, there should be no such interval between the date the notice is last published and the sale day.

The publications in the instant case (and the same is true in the companion case, No 19, 798), were completed several days before the sale day. In the foreclosure of the Grenada Bank D/T. the last notice of sale appeared in the Daily Greenville Democrat on Tuesday before the sale on Friday. And so, too, when the other deed of trust, to the Georgia State Savings Association, was foreclosed, The last sale notice was published on Thursday and the sale was made the following Monday.

It thus appears that the publication was completed several days before the sale under each trust deed and it was not contemplated that it should appear again.

In this case, the publication being made in a daily paper, it was possible, and we submit the duty, of the trustee to make the publication cover the period of time immediately preceding the sale. That is to say he should have published the last notice either on the morning of the sale or certainly the preceding day. This was not done in either case, and we submit that the sales were both void.

Of course, where the publication is of necessity in a weekly newspaper, it is not always possible to have the last notice immediately precede the sale in publication of such notice, and in such cases we do not dispute that our statute and the law will be complied with even though there may be an interval of less than a week between the date of last publication and the sale day. In such case, the law does not contemplate or require the impossible to be done. But in case of publication in a daily newspaper, selected by the trustee, just as he selects the sale day, what we contend for can be effectuated and ought to be.

What is meant by the words, "consecutive weeks" in 2772? It undoubtedly means in a successive manner in a series, or order, following in order, or uninterrupted in course. The words, "for" has been defined by the supreme court of the United States as "duration when it is put in connection with time." Early v. Dowe, 16 How, 610 14, L.Ed. 1099. The remaining important word in 2772, is "preceding." We submit that the word means "next before." 31 Cyc, 1157; 22 A. & E. Ency, of Law (2 Ed.), 1171, defining "preceding." Now if the word "preceding" means, and is employed in what the two authorities cited state is its usual meaning, then it is clear that the publication was not properly made in this case for either sale, nor in the companion case. See McMahan v. American B. & L. Asso., 75 Miss. 965, where our court held that where the trust deed required publication for "four weeks next before the day of sale," that the sale was void where nine days intervened between the last advertisement of sale and the sale day. Our court held that there should have been a strict compliance with the provision in question.

It is obvious that in connection with the advertisement of the sales that "the week need not necessarily commence on the morning of the first day of which has been denominated the Bibical week." Raunn v. Leach, 53 Minn. 84, 87, 54 N.W. 1058.

There is no statutory definition of "week" limiting it to the Biblical week. In fact the construction given all statutes requiring notice for a certain number of weeks ignore the Bibical week.

It is clear, therefore, that the word "week" in 2772 means merely a period of seven days' time, and that the "three consecutive weeks preceding such sale," contemplated by 2772 is that twenty-one days' period immediately preceding the sale day. 1606 provides that, in counting time the day of serving the process or giving the notice shall be excluded and the day of appearance...