McDonald v. Nordyke Marmon Company

• Decision Date: 17 May 1900
• Citation: 83 N.W. 6,9 N.D. 290
• Court: North Dakota Supreme Court

83 N.W. 6

9 N.D. 290

A. B. MCDONALD v. NORDYKE MARMON COMPANY

Supreme Court of North Dakota

May 17, 1900

Appeal from District Court, Towner County; Morgan, J.

Action by A. B. McDonald against the Nordyke Marmon Company and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

Frank D. Davis (Newman, Spalding & Stambaugh), for appellant.

The mortgage pleaded cannot be foreclosed by advertisement. § § 4699, 5844, Rev. Codes. The complaint is sufficient. It alleges that plaintiff made to defendant a mortgage. The power of sale is no part of the mortgage. Plaintiff need only state so much of the contract sued upon as makes prima facie a right of action, and if any other part furnishes the means of defeating the action, it is a means of defense. Bliss on Code Pleading, § 202. The publication of notice was insufficient, and the foreclosure was void. Finlayson v. Peterson, 5 N.D. 587. Section 5848 Rev. Codes, requires forty-two days to elapse between the first publication and the day of sale. Finlayson v Peterson, 5 N.D. 587. It is claimed that § 5143 Rev. Codes, changes the statute in question and is controlling, and operates to shorten the time of publication. The statute construed in the Finlayson case was enacted in 1889 and repealed in 1895 (Rev. Codes repeals paragraph 11) and re-enacted in § 5143. In order to uphold the judgment in the case at bar, this section must operate to shorten the time of publication from forty-two to forty days. The clause in § 5143, Rev. Codes, under consideration, is not a legislative construction, but a new and independent provision, changing § 5848 as construed by this court, and to permit such provision to shorten the time for publication under § 5848, Rev. Codes, as already construed, would be to allow an indirect amendment of § 5848. It cannot be given such an effect. § 64 Const. Section 5143 must then be construed as a legislative construction of the word "weeks" as found in § 5848. As such it is not binding on the court, being an exercise of judicial power. Cooley, Const. Lim. (6th Ed.) 113; Dash v. Van Kleek, 7 Johns. 508. Legislative construction, while entitled to weight, will not be permitted to change the clear and unambiguous language of the previous statute, or the previous adjudication of the courts upon such statute. This is unanimously held with reference to the executive construction of statutes. U. S. v. Dickson, 14 Pet. 141; U. S. v. Graham, 110 U.S. 219; Merritt v. Cameron, 137 U.S. 542; Wisconsin Ry. Co. v. U.S. 164 U.S. 190; Travelers' Ins. Co. v. Fricke, 94 Wis. 258, 68 N.W. 961; Pearson v. Cornell, 54 Neb. 647, 75 N.W. 25.

Siver Serumgard (Cochrane & Corliss on oral argument), for respondents.

OPINION

WALLIN, J.

This action was brought to annul a sheriff's certificate of sale, and to enjoin the delivery of a sheriff's deed pursuant to such sale. Said certificate was delivered to the defendant corporation by the defendant Currie, as sheriff, who sold the real estate described in the certificate at a mortgage foreclosure sale made by advertisement. The mortgage was given by the plaintiff to said corporation, and plaintiff alleges that said foreclosure sale so operates as to cast a cloud upon plaintiff's title to the premises, and that said title will be still further clouded if the delivery of such sheriff's deed is made, and the deed is recorded. Plaintiff alleges that said foreclosure sale was wholly void, because the sale was made upon insufficient notice. This feature of the case is as follows: "That on or about the 15th day of January, 1897, said defendant Nordyke Marmon Company commenced proceedings to foreclose said mortgage by advertisement. That the first publication of the notice of sale under said foreclosure proceedings was made on the 14th day of January, 1897, and that the date of sale contained in said notice and the sale of said property was made on the 23d day of February, 1897. The said mortgagee, in foreclosing said mortgage, failed and neglected to publish said notice of sale for the period of time prescribed by law, and that by reason thereof said foreclosure was wholly void." The complaint was demurred to by the defendants upon the ground that it failed to state facts sufficient to constitute a cause of action. The District Court sustained the demurrer, and pursuant thereto judgment was entered dismissing the action, with costs.

The order sustaining the demurrer is assigned as error, and the ultimate question for determination is whether the notice of sale was legally published. No claim is made that the notice was not published six times, or that it was not published once in each week for six successive weeks. The only criticism upon the publication made by counsel is that the period of time elapsing between the date of the first publication, January 14th, and the date of sale, February 23d, is insufficient in length. This period is exactly 40 days, when computed by excluding the first date and including the last. A decision of the case will require a construction of the statute regulating the...