Rose v. Fall River Five Cents Sav. Bank

• Decision Date: 26 February 1896
• Citation: 43 N.E. 93,165 Mass. 273
• Parties: ROSE v. FALL RIVER FIVE CENTS SAV. BANK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

165 Mass. 273

43 N.E. 93

ROSE v. FALL RIVER FIVE CENTS SAV. BANK et al.

Supreme Judicial Court of Massachusetts, Bristol.

February 26, 1896

COUNSEL

Albert E. Avery, for plaintiff.

Jackson Slade & Borden, for defendant Fall River Five Cents Sav Bank.

Fletcher Ranney, for defendant A.A. Moore.

OPINION

HOLMES J.

This is a bill to set aside a foreclosure sale under a power in a mortgage, and to redeem. The ground on which the sale is alleged to be void is that notice of it was not printed in a "newspaper, if there is any, published in the town wherein the mortgaged premises are situated," as required by Pub.St. c. 181, § 17. The premises are in the town of Dighton. The publication was in the Fall River News. The question is whether there was any newspaper published in Dighton. The paper relied on by the plaintiff was one called the "Dighton Rock." It appeared that newspapers all having the same contents, but having different headings and date lines, according to the 15 different towns of their destination, were printed in Fall River, entered at the post office there as second-class mail matter, and sent out thence to the different towns. In Fall River the sheet was called the "Fall River Advertiser"; in other places respectively, the "Somerset Times,“Freetown Journal," "Swansey Record," etc. The Dighton Rock was mailed from Fall River to its 30 regular subscribers, and two or three times as many copies were sent by express to Dighton, for sale and distribution. The only fact looking like a domicile in Dighton was that the so-called local agent there had over his office door a sign "office of the Dighton Rock. Book and Job Printing." But the publishers of the paper paid no office expenses there, and the agent got his pay in commissions upon sales and orders for printing.

We are of opinion that the Dighton Rock was not published in Dighton, and that the foreclosure was valid. Assuming that papers printed from the same type, with or without different names, might be published in different towns, within the meaning of the statute, in this instance all the 15 heads of the Hydra had their homes in Fall River. The word "published" is used in the statute not quite in the same sense in which it might be used in libel, but refers to the home office of the paper. There was but one place of management, and the paper was given to the world from there, not only under its other names, but as the...