William Early, Plaintiff In Error v. John Doe, On the Demise of Rhoda Homans

• Decision Date: 01 December 1853
• Citation: 14 L.Ed. 1079,16 How. 610,57 U.S. 610
• Parties: WILLIAM EARLY, PLAINTIFF IN ERROR, v. JOHN DOE, ON THE DEMISE OF RHODA E. HOMANS
• Court: U.S. Supreme Court

57 U.S. 610

16 How. 610

14 L.Ed. 1079

WILLIAM EARLY, PLAINTIFF IN ERROR, v. JOHN DOE, ON THE DEMISE OF RHODA E. HOMANS.

December Term, 1853

THIS case came up by writ of error from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington.

It was an ejectment brought by Rhoda E. Homans, to recover that part of lot number four, in square number seven hundred and thirty, in the city of Washington; beginning for the same at a point on the line of A street south, at the distance of thirty-two feet from the north-east corner of said square; and running thence due west with the line of said street, fifty feet and five inches; thence due south, fifty feet; thence due east, fifty feet and five inches; thence fifty feet to the place of beginning; and also into three messuages or tenements with the appurtenances situated thereon, in the county above named.

Upon the trial, the plaintiff showed title in herself, and the defendant made title under a tax sale, when the jury, under the instructions of the court, found a verdict for the plaintiff. The following bill of exceptions explains the case.

Defendant's bill of exceptions.

At the trial of the above cause, after the plaintiff's lessor had shown a legal title in herself, a devisee of D. Homans, who died in August, 1850, to the fifty feet five inches of ground fronting on A street by fifty feet deep, a part of lot 4, in square No. 730, in Washington city, with the houses thereon, being the premises described in the declaration; entitling her, as admitted prim a facie, to recover the same as such devisee, and that the defendant held possession thereof at the commencement of this action. The defendant thereupon, to maintain the issue on his part, offered evidence of a tax title from the corporation of the city of Washington, to sustain which, and to show that the requirements of the act of 26th May, 1824, had been complied with, proved the notice of the time and place of the tax sale to

have been given by the city collector, by advertisement in the National Intelligencer, in the following words:——

COLLECTOR'S OFFICE, CITY HALL,

August 25th, 1848.

'On Wednesday, the 15th day of November next, the annexed list of property will be sold by public auction, at the City Hall in the City Hall in the city of Washington, to satisfy the corporation of said city for taxes due thereon as stated, unless the said taxes be previously paid to the collector, with such expenses and fees as may have accrued at the time of payment.' And amongst other property so advertised was the following:

No. of Sqr. 730.

No. of Lot. Pt. 4, fronting 50 ft. 5 in., and improvement on A street, and 50 ft. deep, lying next to the eastern 32 ft. of said lot.

Assessed to. Daniel Homans.

Taxes. 1845. 1846. 1847. 9.94, 9.94, 9.94.

Total. $29.82

And the insertion of said advertisement was on the following days:

Saturday, 26th Aug., 1848.

Saturday, 2d Sept., 1848.

Saturday, 9th Sept., 1848.

Thursday, 14th Sept., 1848.

Thursday, 21st Sept., 1848.

Saturday, 30th Sept., 1848.

Saturday, 7th Oct., 1848.

Saturday, 14th Oct., 1848.

Saturday, 21st Oct., 1848.

Saturday, 28th Oct., 1848.

Saturday, 4th Nov. 1848.

Saturday, 11th Nov. 1848.

Wednesday 15th Nov. 1848.

And that on such last day above mentioned, the said sale took place and the defendant became the purchaser of said premises for $55. Whereupon the plaintiff prayed the opinion and instruction of the court to the jury, 'that the said sale was invalid and of no effect, and passed no title to the defendant in the premises in question; because a period of twelve full and complete weeks had not intervened between the 26th August, the time of the first advertised notice of said sale, and the 15th November, 1848, the day or time of said sale, but a period of eleven weeks and four days only;' which opinion and direction the court gave as prayed for by the plaintiff, to which opinion and direction of the court to the jury, the defendant by his counsel, prayed leave to except, and that the court would sign and seal these his bill of exceptions, according to the form

of the statute in such cases made and provided, which is accordingly done this 17th day of May, 1853.

JAS. S. MORSELL, [SEAL.]

JAS. DUNLOP, [SEAL.]

Test: JNO. A. SMITH, Clerk.

Upon this exception the case came up to this court and was argued by Mr. Lawrence, for the plaintiff in error, and by Mr. Redin and Mr. Woodward, for the defendant in error.

Mr. Lawrence.

The only question in this case is, whether the words of the act of 26th May, (4 Stat. at Large, 75,) 'inserted in some newspaper published in said city, once in each week for at least twelve successive weeks,' are to be understood as requiring the full period of eighty-four days between the first and last advertisement, or as requiring an insertion once in each of twelve successive weeks.

A week is a definite period of time, beginning on Sunday and ending on Saturday, (4 Pet. 361); and insertions of notice on Monday and the Saturday week following, were held to fulfil the requirement of 'one in each week,' although thirteen days intervened between the two.

It is maintained, for the plaintiff in error, that if there are twelve insertions of the notice in any part of each of twelve successive weeks, that is sufficient.

The counsel for the defendant in error contended that the notice was insufficient.

The last charter of the city of the 17th May, 1848, makes no change in the period of notice and the manner of giving it; they are still regulated by the act of 26th May, 1824.

The words of the second section of that act are, 'that public notice of the time and place of the sale of all real property for taxes due the corporation of the city of Washington, shall be given in all cases hereafter by advertisement, inserted in some newspaper, published in said city, once in each week, for at least twelve successive weeks; in which advertisement shall be stated the number of the lot,' &c.

The facts. The first insertion was on Saturday, the 26th August, 1848; the last, on Wednesday, the 15th November, the day of the sale, being a period of eighty-two days only, including both days, namely, the day on which the notice first appeared, and the day of sale.

The eleventh week ended, either on Friday, the 10th of November, or on Saturday, the 11th, according as the week is made to commence on the day on which the notice first appears, or on the first succeeding Sunday thereafter. The twelfth week

could not expire until Friday the 17th, or Saturday the 18th November, and the earliest day on which the sale could have been made was one of those days. It was made on the previous Wednesday, the 15th November, before the twelve weeks had expired.

By the charter of 1812, it was directed that the notice should 'be given, by advertising, at least six months, where the property belongs to persons residing out of the United States; three months, where it belongs to persons residing in the United States, but out of the District of Columbia; and six weeks, where it belongs to persons residing within the district.'

The charter of 1820, superadded to the period of notice, the further requisition of weekly insertions of the advertisement, 'once a week, for at least six months, three months, or six weeks,' according to the residence of the owner. Section 12.

The act of 1824 changed the period of notice from months to weeks, but retained the further requirement of weekly insertions, 'once in each week, for at least twelve successive weeks.'

There are, then, two requirements, as to notice, by the act of 1824: 1st, twelve weeks notice; and, 2d, the insertion of the advertisement once in each of those twelve weeks.

The full period of twelve weeks' notice must be given. In Ronkendorff v. Taylor, 4 Peters, 361, the court say: 'A week is a definite period of time, commencing on Sunday, and ending on Saturday;' and, being thus composed of seven days, twelve weeks cannot consist of less than eighty-four days. And that case sanctions the idea, that the whole period of twelve weeks should elapse before the sale. Whether the week be made to commence on the day on which the notice is first published, and to end on the seventh day thereafter; or to begin on the Sunday following the first day of the notice, and end on the succeeding Saturday, is immaterial in this case; the result—not twelve weeks' notice—is the same on either mode of computation. The first insertion was on Saturday, the 26th August. If the week commenced on that day and ended on the following Friday, there are but eighty-two days, including both day of notice and day of sale. If it began on Sunday, the 27th, and ended on the succeeding Saturday, there would be but eighty-one days, including both. And, if the true rule to be include the day on which the notice first appears, and to exclude the day of sale, there would still be but the same eighty-one days;—eleven weeks and four days.

The expression in the act of 1824 is: 'once in each week, for at least twelve successive weeks,' not merely once in each week, but once in each week 'for' twelve weeks during or through that certain space of time; and not merely for twelve weeks, but for 'at least' twelve successive weeks, not less than that whole period.

The notice, according to Ronkendorff v. Taylor, may be inserted on any day in each of those twelve weeks, on the last day of the eleventh week and the first day of the twelfth week. But that rule was not meant, as the corporation officers seem to have supposed, to authorize the collector to abridge the period of notice; to insert one advertisement in each of the first eleven weeks and a twelfth on the fourth day after the end of the eleventh week, and to sell on that day and before the twelfth week had fully expired. The corporation by-law followed the words of the act of Congress. The collector...