Tappan v. Dayton

• Decision Date: 18 December 1893
• Citation: 28 A. 1,51 N.J.E. 260
• Parties: TAPPAN v. DAYTON et al.
• Court: New Jersey Supreme Court

28 A. 1

51 N.J.E. 260

TAPPAN

v. DAYTON et al.

Prerogative Court of New Jersey.

Dec. 18, 1893.

(Syllabus by the Court.)

Appeal from orphans' court, Middlesex county; Rice, O'Gorman, and Freeman, Judges.

On the petition therefor of William F. Dayton and Annie B. Dayton, administrators of the estate of Jonathan Dayton, deceased, land belonging to the estate was sold for the payment of debts, and, from the order of confirmation, Adelbert T. Tappan, the purchaser, appeals. Reversed.

Alan H. Strong, for appellant.

Silas D. Grimstead, for respondents.

McGILL, Ordinary. This appeal is from an order of the Middlesex county orphans' court, which confirms the sale of land belonging to the estate of Jonathan Dayton, deceased, by the administrators of that estate to pay debts, at which sale the appellant was the purchaser. No objection is made to the proceedings in the orphans' court by which the sale was authorized. The illegality suggested rests entirely upon alleged irregularities in the —s of the notice of sale. The law which regulates those —s is found in the supplement to the statute entitled "An act relative to sales of land under a public statute or in virtue of any judicial proceedings," which was approved March 17, 1887, (P. L. 28,) and provides, among other things, that where an administrator shall be authorized by public statute or the direction of a court of competent jurisdiction, to make sale of lands, he shall give notice by public —s signed by himself, and set up at five or more public places in the county, one whereof shall be in the township, ward, or city where the real estate is situate, at least four weeks next before the time of sale, and shall likewise cause the notice to be published in two newspapers printed and published in the county in which the land is situate, of which one shall be a newspaper printed and published at the county seat, etc., for at least four weeks successively, once a week, next preceding the time appointed for selling the same; and in the further supplement to the same act, which was approved March 16, 1891, (P. L. 161,) and enacts "that in all counties in this state wherein, at the county seat thereof, there is now published in the German language a paper, which has been or may he designated by law to publish the laws of this state, it shall be the duty of the officer having charge of the sale of real estate, to select and publish all —s of sales and adjournments thereof, in one such paper."

The first objection urged is that, when the sale in question took place, there was a paper in Middlesex county published in the German language, answering the description in the supplement last referred to, in which notice of the sale was advertised in the English, not in the German, language; the insistment being that, because of the publication in English, there was a fatal departure from the requirement of the law. It is observed that the statutes under which the publication was made have for their object, as indicated in their titles, sales of land under public statute or in virtue of judicial proceedings. It is also noted that the law of 1891, which requires publication in a German paper, is silent as to the language in which the publication in it shall be made. The sale in question was in virtue of a judicial proceeding in the orphans' court, and the publication of notice of that sale is part of a judicial proceeding. It is the public proclamation of the court's officer or agent, in obedieuce to the court's order. When the sale is made, it must be reported to the court, (Revision, p. 768, § 76,) and confirmed by that tribunal, before conveyance is made to the purchaser. In that confirmation the fullness and fairness of the terms of the notice of the sale are considered, as well as the publication of that notice, and, in order that the court may know those terms, the notice itself must be presented for judicial inspection and review. By the seventeenth section of the act respecting amendments and jeofails, passed November 21, 1794, (Revision, p. 12,) all proceedings whatever, in every court of law or equity in this state, are required to be in the English tongue and language, and in no other tongue or language. The precise question suggested by the objection is whether the act of 1891, from its requirement that notice of sale shall be advertised in a newspaper published in the German language, so implies that such notice shall be in the German language as to repeal, pro tanto, the seventeenth section of the statute respecting amendments and jeofails. That section has existed upon our statute book for nearly 100 years, and during all that time the records of our courts have uniformly been in the English language, intelligible to all persons who speak and read the language of our country. Was it the purpose of the legislature to single out one foreign language, and give it a place in our judicial...