132 N.W. 225 | N.D. | 1911
This is an action in equity brought by the plaintiff to quiet title to a quarter section of land in Emmons county, North Dakota. The facts were stipulated in the court below, and from- such stipulation it appears that in September, 1884, one Mary A. Packer, being then the owner, mortgaged the said premises to one Dudley. Default having occurred in the payments secured by the mortgage, foreclosure was made under power of sale in said mortgage contained, and upon the 10th day of August, 1891, the premises were sold and bid in by the mortgagee, who, in the year 1903, conveyed the same to the defendant Horton, for full value. Horton, later on, deeded to the defendant Stevens. Mrs. Packer paid nothing upon the mortgage debt after the year 1890, and the taxes have been paid by these defendants or their grantors since the year 1885. Mrs. Packer removed from the premises following the foreclosure, and has been a resident of the state of Montana since the year 1895. She had received no rents or profits from the premises for a year prior to the quitclaim deed given to the plaintiff in the year 1907. This plaintiff claims title under a quitclaim deed from Mrs. Packer, which recites a consideration of $1 and other valuable considerations. The mortgage debt and the taxes paid by the
We believe the plain reading of the first part of this chapter is that a publication upon any day of the first week of the “six successive weeks” should be sufficient publication for the entire calendar week, commencing Sunday morning. A similar publication for six successive weeks would satisfy the law. The sale might be held upon the first week day of the seventh week. In the case at bar, the publication upon Friday, July 3d, was publication for the entire calendar week beginning June 28th and ending July 4th; publication on July 10th would be sufficient publication for the week beginning Sunday, July 5th, and ending Saturday, July 11th, the second successive week. The sixth successive week began Sunday, August 2d, and ended Saturday, August 8th. The sale took place Monday of the following (seventh) week. Respondent argues that said chapter was enacted to settle a dispute that had arisen as to whether notices printed inadvertently upon different days of the several weeks were valid. We see no reason why
The Einlayson sale, as we have said, was made in the year 1885, but was not presented to this court until about the year 1896. This court was therefore aware of the passage' of chapter 38, Laws 1889, and discusses said chapter fully in the opinion. After setting out both sides of the controversy, the court contents itself with holding that said chapter was not retroactive, and could not apply to a sale made before its passage and approval. It is therefore apparent that the status of mortgage foreclosure sales made between the 8th day of March, 1889, and the 1st day of January, 1896, has not been heretofore passed upon by this court; the cases of McDonald v. Nordyke Marmon Co. 9 N. D. 290, 83 N. W. 6, and Grandin v. Emmons, 10 N. D. 223, 54 L.R.A. 610, 88 Am. St. Rep. 684, 86 N. W. 723, being an interpretation of the law as amended by the legislature of 1895, and as it stands to-day. Bev. Codes 1895, § 5848; Bev. Codes 1905, § 7459. We hold, therefore, that the sale in the case at bar was upon sufficient notice, and is valid, and that the defendant Stevens is entitled to a decree quieting title to the premises in himself.
It follows from the foregoing conclusions that the order of the District Court should be reversed, and said court is directed to enter an order quieting title to the premises in the defendant Stevens.