Planters Mercantile Co. v. Braxton

• Decision Date: 14 July 1919
• Docket Number: 20822
• Citation: Planters Mercantile Co. v. Braxton, 120 Miss. 470, 82 So. 323 (Miss. 1919)
• Court: Mississippi Supreme Court
• Parties: PLANTERS MERCANTILE CO. v. BRAXTON ET AL

82 So. 323

120 Miss. 470

PLANTERS MERCANTILE CO. v. BRAXTON ET AL

No. 20822

Supreme Court of Mississippi

July 14, 1919

Division B

1 MORTAGES. Foreclosure sale. Publication of notice.

Under Code 1906, section 2772 (Hemingway's Code, section 2276) providing that lands to be sold under mortgages and deeds of trust shall be advertised for three consecutive weeks preceding such sale, it is necessary that publication be made for the three weeks next before the date of sale, and immediately preceding the day of sale, and a sale is void where a longer period of time than one week elapses from the day of the last publication and the day of sale.

2. MORTGAGES Void foreclosure.

Where the beneficiary in a deed of trust purchases at a void foreclosure sale, it does not necessarily result in the loss of the secured indebtedness.

HON. R E. JACKSON, Judge.

APPEAL from the circuit court of Wilkinson county, HON. R. E JACKSON, Judge.

Suit by the planters Mercantile Company, against Fisk Braxton and others. From a judgment for defendant, plaintiff appeals.

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

Judgment affirmed.

W. F. Tucker, for appellant.

It is admitted in appellee's brief that the question to be passed on here, is the interpretation of the word "preceding" as used in section 2772 of Mississippi Code of 1906; that is, as used in the following phrase: "Sale of said lands shall be advertised for three consecutive weeks preceding such sale." Preceding as used here means only before such sale, as it will be noted that the Mississippi legislature, when it has attempted to qualify and limit time to notices, has invariably used the words next preceding, and the Mississippi supreme court has followed this interpretation in the matter of limiting time of published notices.

In the case of Weston v. Handcock County, 54 So. 307, Chief Justice MAYES held in advertising the issuance of bonds under section 33, Code of 1906; that while said section requires notice to be published "for three weeks next preceding" the issuance of said bonds, "it did not mean that if the board failed next after the publication of notice, it may no do so at some future time."

In the case of Lay v. Shores, President of Board of Supervisors et al., 72 So. 881, requiring notice, under section 2 of chapter 149, Laws of 1910, for issuance of bonds, "shall be published for three weeks next preceding the meeting at which such board proposes to issue such bonds, and the notice was published May 4, 1916, May 11, and May 18, to the effect that the board of supervisors proposed to issue bonds at the regular meeting on June 5th. Judge COOK held in this case that the word "next" meant nearest, and the sentence "for three weeks next preceding" meant that three weeks nearest to the time the board proposed to issue the bonds, and as more than one week intervened between the last publication and the day fixed for the proposed action of the board, the notice was not sufficient under the said statute. Judge Cook here followed the meaning given "next" by all the laws dictionaries and authorities. It will be noted that in Lay v. Shores, case that the last publication was on the 18th, and that week's publication ended on the night of the 24th, and there was more than one week between the 24th and the day of the proposed action or issuance of said bonds on June 5th. It is not the number of times the notice or publication appears, but the weeks the notice gives. If the publication had appeared again on the 25th, then that week's notice would have ended on the night of the 31st day of May, and there would not have been a week between the 31st day of May and the 5th day of June, and the notice would have been sufficient. Myakka Co. v. Edwards, 67 So. 217 to 224.

In the case of Hattiesburg Grocery Co. v. Tompkins, 111 Miss. 592, 71 So. 866, Judge SYKES held that the words "next after" excluded the first day. The word "next" is a very important word in its meaning in connection with time and, is given by all legal authorities, but the word "preceding" is not defined by Bouvier or Anderson and we find no particular definition of same in Words and Phrases; and it seems strange if "preceding" means "next before" why it is not more commonly used and defined by legal authorities.

There is no fraction of a week in law. "A week, as a period of time, commences Sunday Morning and ends Saturday Night. " A notice requiring a certain number of weeks of publication is not limited to or computed by the time the notice appears or by the dates it is published, but by the specified weeks the notice gives. State v. Cherry County, 5 Neb. 734, 79 N.W. 825; Myakka Co. v. Edwards, 67 So. 217-224.

The notice in the case at bar first appeared Saturday, March 4, 1916; the first week's publication, or notice, ended Friday night at 12 o'clock, March 19th; the second week's notice began Saturday morning, March 11th and ended Friday, March 17th; the third week's notice began March 19th and ended Friday night, March 24, and on Saturday, March 25th the fourth appearance, or publication, of the notice was made ending that week's notice on Friday night at 12 o'clock, March 31, 1916, two days before the day of sale on Monday, April 3, 1916. It is not the number of notices or the dates of publication by which specified notice in weeks must be computed; it is the weeks of notice specified by the statute that must be computed.

A notice requiring publication once a week for three consecutive weeks preceding a sale, could be published in a daily on Saturday, March 4th, and next week on Thursday, March 9th, and again on Monday, March 13th, and the sale made on Tuesday, March 14, giving only nine days actual notice, when three weeks or twenty-one days is the specified notice required.

The question of a notice of a publication, under a statute similar to the one in question here, is exhaustively and ably discussed by Judge WHITFIELD, and Judge ELLIS on hearing, in the case of Myakka Co. v. Edwards, 67 So. 217-224, and it is therein held that notice for the specified number of weeks must be given and that times or dates, or publication are not to be computed.

We submit that if the word "preceding" is held to mean "next before" as claimed by appellees in their brief, even then the specified notice of the statute was given for three consecutive weeks next before the day of sale, or up to and including the 31st day of March, 1916. Two days before the sale on April 3d.

H. C. Leak and A. H. Jones, for appellees.

From an examination of all papers in this case, it will be seen that the question to be passed on here, is the interpretation of the word "preceding" as used in section 2772 of Mississippi Code of 1906, which provides: "Sale of lands shall be advertised for three consecutive weeks preceding such sale, in a newspaper published in the county and by posting one notice at the court house of the county where the land is situated for said time. No sale of land under a deed of trust or mortgage shall be valid unless such sale shall have been advertised as herein provided for, regardless of any contract to the contrary." Counsel for appellant cite Noah Webster's Dictionary and The Century Dictionary for a definition of the word "preceding," both of which are authority, and both give the same definition "to go before in order of time;" however we cannot admit that any time can elapse between a certain day or week and the preceding day or week, as counsel for appellant seems to think.

In Crabb's Synonyms, pages 272 and 273, under title, "antecedent, preceding, foregoing, previous, anterior, prior, former" we find the following: "Antecedent and preceding both denote priority of time, or the order of events; but the former in a more vague and indeterminate manner than the latter. A preceding event is that which happens immediately before the one which we are speaking; whereas antecedent may have events or circumstances intervening; 'The seventeen centuries since the birth of Christ are antecedent to the eighteenth, or the one we live in; but it is the seventeenth only which we call the preceding one.' Trusler, 'Letters from Rome,' dated the thirteenth instant, say, that on the preceding Sunday, his holiness was carried in an open chair from St. Peter's to St. Mary's Steele. An antecedent proposition may be separated from its consequent by other propositions; but a preceding proposition is closely followed by another. In this sense antecedent is opposed to posterior; preceding to succeeding. Preceding respects simply the succession of times and things. We speak of the preceding day or the preceding chapter, merely as the day or chapter that goes before."

In Smith v. Gibson et al., 68 So. 143, Justice SAYRE, speaking for the supreme court of Alabama, says: "Although a different signification will be given if required by the context of the facts of the case, yet "preceding" means generally next before, just as "following" means next after" Simpson v. Robert, 35 Ga. 180. Thus Webster's New International Dictionary under the word, "antecedent" says: "Antecedent (opposed to, subsequent) and preceding (opposed to, succeeding, following) differ, in that preceding usually applies to that which goes immediately before (as the preceding day, the preceeding clause), whereas antecedent, frequently suggests an indefinite interval (as, a period of, antecedent to the conquest)." In McMahon v. American B. & L. & T. S. Ass'n 75 Miss. 965, this court held where a deed of trust provided for publication "for four weeks next before the day of sale" giving terms, and place of sale.

"This was his sole authority to sell, and he was bound to comply strictly with the terms of the power conferred on him. This...