Crowell v. Parker, 46 A. 35

46 A. 35 | R.I. | 1900

This is a bill for specific performance brought to compel the purchaser at a mortgage sale of real estate to take a deed to the property sold.

The only question raised is whether "The Real Estate Register and Rental Guide" is a public newspaper within the meaning of the power of sale in the mortgage. The powers of sale contained in mortgages of real estate in this State were framed many years ago, when the only newspapers were newspapers in the ordinary acceptation of the term, to wit: Publications issued periodically, containing what is known as the general or current news, or news of the day, designed to be read by the public generally; or, in other words, for general circulation. These being the only publications in the form of newspapers, the practice grew up, and has continued, to publish notices of mortgage sales and legal notices generally in the ordinary newspapers for general circulation, and we think that publicity is more likely to be secured by such publication than by publication in a newspaper like the one in question, which is primarily devoted to the interests of a limited class of readers, and which, though taken up largely, as its name imports, with transactions concerning real estate, has never been employed, so far as appears, as a medium for advertising notices of mortgage sales or other legal notices, and which, for that reason, is not likely to be consulted by those interested in mortgage sales. Our opinion, therefore, is that it is not such a newspaper as is contemplated by the power of sale, and hence that notice of the sale published in it was not a compliance with the power. Beecher v. Stephens, 21 Minn. 146.

In Kerr v. Hitt, 75 Ill. 51; Railton v. Lauder,126 Ill. 219; Maass v. Hess, 140 Ill. 576; Kellogg v.Carrico, 47 Mo. 157; Beckendorf v. Vincenz, 52 Mo. 441;Lynch v. Durfee, 24 L.R.A. 793, to which our attention has been called by complainant's counsel, the newspapers, though devoted primarily to the interests of particular classes of readers, had either been extensively used for the publication of notices of sales and other legal notices, or were newspapers or had been found by lower courts to be newspapers of general circulation; in which respect they were unlike the newspaper under consideration. Hull v. King, 38 Minn. 349, also cited by complainant's counsel, apparently rested on the authority of the Illinois and Missouri cases referred to, although the publication in this last case was unlike those in the former in that it did not appear to have been employed for the advertising of legal notices or to have been of general circulation. We do not deem it of sufficient authority for us to follow it.