Orvik v. Casselman

• Decision Date: 20 December 1905
• Citation: 105 N.W. 1105,15 N.D. 34
• Parties: ORVIK et al. v. CASSELMAN.
• Court: North Dakota Supreme Court

15 N.D. 34

105 N.W. 1105

ORVIK et al.

v.CASSELMAN.

Supreme Court of North Dakota.

Dec. 20, 1905.

Syllabus by the Court.

It is a fact of which the court takes judicial notice that “standard” or “railroad” time is the system for designating time which has been in general use in this jurisdiction since territorial days.

“Two o'clock p. m.,” in a notice of foreclosure sale in 1896, must be taken to mean 2 o'clock in the afternoon, standard time.

Section 5848, Rev. Codes 1895, reducing the period of time previously required for publication of the notice of sale in foreclosures by advertisement, applies to all foreclosures by advertisement made after the revision took effect, even though the mortgage being foreclosed was executed before that time.

Section 5848, Rev. Codes 1895, did not, as to previously existing powers of sale, impair the obligation of any contract.

The stipulation in a mortgage conferring a power of sale in case of default gives a remedy which must be exercised agreeably to the statutes relating thereto in force when the remedy is invoked.

Appeal from District Court, Nelson County; C. J. Fisk, Judge.

Action by Knud Orvik and Ole G. Olson against John Casselman. Judgment for plaintiffs, and defendant appeals. Affirmed.W. H. Standish, for appellant. Scott Rex, for respondents.

ENGERUD, J.

This is an appeal by defendant from a judgment for plaintiffs in an action to quiet title. Plaintiffs derived their title from a sale of the land in proceedings to foreclose a mortgage thereon by advertisement. The mortgage was executed and recorded in 1894. The foreclosure proceedings culminating in the sale were instituted in 1896. It is conceded that, unless that sale was invalid for one or both of the two reasons hereinafter stated, the judgment confirming plaintiff's title is right. Defendant attacks the sale, first, because there was an insufficient publication of the notice of foreclosure; and, second, because the sale was made 28 minutes before the time stated in the notice.

The notice stated that the sale would be made at “2 o'clock p. m.” of the day named. The sale was actually made at 2 o'clock in the afternoon, according to standard or railroad time, which at Lakota, the county seat of Nelson county, where the sale took place, is about 28 minutes faster than “sun time.” Appellant asserts that the time stated in the notice must be taken to mean two hours after the sun had passed the meridian at that place, and hence the sale was made nearly half an hour too soon. The use of “standard” time in designating the hour of the day has been the universal usage in this state since territorial times. The court takes judicial notice of that usage. Rev. Codes 1899, § 5713e, subd. 30. After the general use of solar time became obsolete, the abbreviations “a. m.” and “p. m.” in designating time remained in use to distinguish between forenoon and afternoon. In 1896 the accepted meaning of the expression “2 p. m.” was, as it is now, 2 o'clock in the afternoon, standard time. That was its meaning in this notice, as it would be understood in this state at that time by every one of sufficient intelligence to read it. We have not overlooked the decisions on this subject in Georgia, Nebraska, and Iowa. Henderson v. Reynolds, 84 Ga. 159, 10 S. E. 734, 7 L. R. A. 327;Searles v. Averhoff, 28 Neb. 668, 44 N. W. 872;Jones v. Insurance Co., 110 Iowa, 75, 81 N. W. 188, 46 L. R. A. 860. Those decisions have no bearing on this case, because, although the standard time may not have been adopted by usage in those several states at the time those decisions were rendered, there is no doubt in this state as to the universal adoption of that system of computing and designating time.

The objection to the sufficiency of the notice is equally as devoid of merit as the objection with respect to the time of sale. It is admitted that the notice was sufficient in form, and was published six times, once in each of six successive weeks before the sale; but the sale took...