Reuter v. Dickinson Building & Loan Association of Dickinson, N.D., a Corp.
| Decision Date | 29 July 1933 |
| Docket Number | 6168 |
| Citation | 249 N.W. 778,63 N.D. 673 |
| Court | North Dakota Supreme Court |
From a judgment of the District Court of Stark County Berry, J., plaintiff appeals.
Reversed.
G R. Brainard, for appellant.
In the absence of provisions of law to the contrary it is generally held that it is not sufficient to print the notice or advertisement in the English language in a foreign language paper. 46 C.J. 27.
When legal notices are to be published in a newspaper, an English newspaper is always intended, unless expressed to be otherwise. Graham v. King, 50 Mo. 22, 11 Am. Rep 401; McLean v. Bergner, 80 Mo. 414; Bailey v. Hendrickson, 25 N.D. 500, 143 N.W. 134; State ex rel. Goebel v. Chamberlain, 75 N.W. 62; 20 R.C.L. 204; Bennett v. Baltimore, 106 Md. 484, 68 A. 14, 14 Ann. Cas. 419; Conners v. Lowell, 209 Mass. 11, 95 N.E. 412; People v. Day, 277 Ill. 543, 115 N.E. 732.
W. C. Crawford, for respondent.
Where a statute directs that certain acts and proceedings of the city council be published in a newspaper the requirements of the statute are fulfilled by making the publication in a newspaper printed in a foreign language provided such acts or proceedings are published in such paper in the English language. Hyman v. Susemihl, 137 Wis. 296, 118 N.W. 837; Kellogg v. Oshkosh, 14 Wis. 623; Wakeley v. Nicholas, 16 Wis. 588.
A mortgagee in possession cannot be divested of that possession or quieted in the third parties without the payment of the debt due notwithstanding such foreclosure proceedings are void. Howland v. Barker, 212 N.W. 770; Basker v. VanBeke, 19 N.D. 104; Tracy v. Wheeler, 15 N.D. 248, 6 L.R.A. (N.S.) 516; Finlayson v. Peterson, 11 N.D. 45; Nash v. Land Co. 15 N.D. 566; Brown v. Comonow, 17 N.D. 84.
This controversy involves the validity of a mortgage foreclosure by advertisement. The question is whether the notice of foreclosure sale was published as required by law. The notice of mortgage foreclosure sale was published in a newspaper printed in the German language and the question is whether, under the laws of this state, such notice may be published in such newspaper. There is no dispute as to the facts. The material facts are stipulated. The several issues of the publication in which the notice of foreclosure sale was printed were admitted in evidence by stipulation. An examination of the same discloses that all news items, all all editorials are printed in the German language. The only part of the publication that is printed in the English language is the notice of foreclosure sale in question here, some other legal notices and some stereotyped advertisements. The amount of space in the publication actually printed in the English language is about ten and one-half per cent of the total space of the paper and that eighty-nine and one-half per cent of the printed matter in such paper is in the German language.
The statute relating to the publication of a notice of mortgage foreclosure sale reads as follows: "Notice that the mortgage will be foreclosed by a sale of the mortgaged premises or some part thereof must be given by publishing the same six times, once in each week for six successive weeks, in a newspaper of the county where the premises intended to be sold, or some part thereof, are situated, if there is one, and if not, then in some newspaper published at the seat of government." Comp. Laws 1913, § 8079.
This section, so far as material here, has been a part of our statutory law since territorial days. It is found as § 600 of the Revised Codes of the Territory of Dakota for 1877. The provision that "notice that the mortgage will be foreclosed by a sale of the mortgaged premises or some part thereof must be given by publishing the same . . . in a newspaper of the county where the premises intended to be sold or some part thereof, are situated, if there is one," has remained without change during the entire history of the state. In 1890, however, the legislative assembly of the state enacted a statute prescribing the qualifications of a legal newspaper. Laws 1890, chap. 120. Among the qualifications prescribed by such statute was that such newspaper must have been established for a certain length of time, that it must have at least a designated number of subscribers, must be of a certain size and that a certain amount of the printed matter must be devoted to reading or news matter. While later certain changes were made in this statute, in general the principle adopted and the qualifications thus prescribed were retained until 1919. The legislative assembly which convened that year, however, provided for the designation of one official newspaper in each county; and required, among other things, that all notices of real estate mortgage foreclosure sales by advertisements be published in such newspaper. Laws 1919, chaps. 187, 188. It was provided that at the general election in 1920 and at each general election thereafter, an official newspaper should be chosen in each county by the electors thereof. Laws 1919, chap. 187. This law, however, was amended by a statute proposed by initiative petition and enacted by the electors of the state at the general election in 1920. Laws 1921, p. 256. The effect of the initiative enactment of 1920 was to eliminate the requirement that legal notices in actions and proceedings and notices of foreclosure of real estate mortgages by advertisement be published in the official newspaper. The legislative assembly in 1923 provided that newspapers, desiring to become the official newspaper of a county, submit their candidacies to the voters at the primary election and that the two newspapers receiving the highest number of votes should be deemed nominated and placed upon the general election ballot; and that the one receiving the highest number of votes at the general election should be declared elected the official newspaper. Laws 1923, chap. 211. The legislative assembly in 1925 amended this latter statute so as to prescribe as qualifications for a newspaper desiring to become a candidate for official newspaper that it must be "a non-sectarian newspaper within the county, printed at least three quarters in English, which has been established for at least one year and has been admitted to the United States mails and has complied with the requirements of federal laws governing second class matter for at least a period of one year, and at least one page of which newspaper is actually printed at the place designated in the date line thereof, and has been in regular and continuous circulation during said period of one year with a bona fide subscription list of at least 150 regular subscribers within the county of its location." Laws 1925, chap. 172, § 3.
It is the contention of the appellant that a notice of foreclosure of a real estate mortgage by advertisement is invalid unless it is published in a newspaper having the qualifications prescribed by § 3 chapter 172, Laws 1925. In other words, it is the contention of the appellant that the provisions of that section govern as regards the qualifications of a "legal" newspaper as well as the qualifications of a newspaper that may be chosen an official newspaper of a county. The respondent, on the other hand, contends that § 3, chapter 172, Laws 1925, applies only to "official" newspapers and that it has no application to, and does not purport to prescribe the qualifications of, a newspaper in which notices of real estate mortgage foreclosure sales by advertisement may be published. We find it unnecessary to determine which of these contentions is correct. If the appellant is correct, then clearly the newspaper in question here was not qualified to publish the notice in question as it is conceded that it was not "printed at least three quarters in English." On the other hand, if this statute does not apply, then we are all agreed that the newspaper in question here was equally disqualified, as under the laws of this state there is no authorization, either express or implied, for the publication of a legal notice in any newspaper other than one published in the English language. Our laws, both constitutional and statutory abound with provisions requiring certain matters to be published. But, so far as we can ascertain, there is no provision in our laws now, nor has there at any time been any provision, to the effect that any notice or statement required to be published shall be published in the English language. Yet it has been accepted as self-evident that where the laws of our state require a notice or statement to be published that the publication must be made in the English language. In short, when our laws require certain notices or matters to be published, although nothing is said as to the language in which the publication is to be made, they have been construed as necessarily implying that the publication must be made in the English language. Respondent's counsel concedes this to be true. He concedes that where our laws require any notice or statement to be published that in the absence of any express direction to the contrary it was intended that the publication should be made in the English language. But, he asserts that the implication goes no farther and that if the notice or matter required to be published is printed in the English language it may be published in a newspaper printed in a foreign language. In our opinion this contention is not well founded. While the statutes prescribing the qualifications of a newspaper, either legal or official say nothing about the language in which the newspaper...
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