174 N.W. 745 | S.D. | 1919
“Mere inaccuracies, not calculated to be misleading, are insufficient to invalidate a sale, in the absence of a claim that any one has been injured.”
To determine just what this court meant by “inaccuracies,” one needs to examine the facts in the Shepard Case. But, first, we would correct an erroneous statement made in the opinion in that case. The court said:
“Evidently the object of the notice contemplated by statute is to fully advise all interested persons and the general public of the existence of conditions which authorize a foreclosure by advertisement.”
If such were the object of the notice, our statute would require that it recite the existence of the facts upon which the right to foreclosure — to exercise the power of sale — depends; the notice would have to recite the existence of the matters set forth in section 2877, Rev. 'Code 1919. The purpose of the notice is clearly shown h)' the things which must appear therein. Section 2880, Rev. Code 1919, provides:
“Every notice must specify:
“1. The name of the mortgagor and mortgagee, and the assignee, if any.
“2. The date of the mortgage.
“3. The amount claimed to be due thereon at the date of the notice.
*320 “4. A- description of the mortgaged premises. * * .*
“5. The time and place of sale.”
From such notice interested parties should be able to identify the mortgage; learn who were and are the parties thereto; know the amount of lien claimed against the property t ■what property is mortgaged; and when and where to attend if interested in the sale. In the Shepard Case, it was not erroneous statements in the notice with which the court had to deal— there were no erroneous statements. The court stated that the “syntax and grammatical construction of the notice” were open to criticism; it held that, though inaccurate in language, the notice did fairly specify truthfully everything prescribed by the statute; and, in support of its conclusion that such “mere inaccuracies * * * are insufficient to invalidate a sale, ”* * it cited four cases, in ever)'’ one of which, as in the case before it, there were inaccuracies of language in the notices, and yet the courts hadi held that, under a proper construction of the language used in each of said cases, every statutory requirement as to contents of notice was complied with. It is therefore clear that this court, in the Shepard Case, in the use of the word “inaccuracies,” did not have in mind a case where the notice, when fairly construed, failed to specify all that the statute requires, or where the notice contained an erroneous specification.
The judgment and order appealed from are reversed.