Gross v. Fowler

21 Cal. 392 | Cal. | 1863

Field, C. J. delivered the opinion of the Court

Cope, J. and Norton, J. concurring.

The plaintiff deraigns title through a deed of the Sheriff executed to him upon a sale of the premises in controversy under a decree in a mortgage case. The sale was made on the fifth of October, 1861, and the deed was executed on the twenty-fifth of March following— which was after the lapse of six lunar months, but within six calendar months. The statute allows six months from the date of the sale for the redemption of real property sold under execution, and this Court has held that a similar right of redemption applies to sales under decrees in mortgage cases. The decision placing sales under decrees in mortgage cases and under executions on judgments at law upon the same footing was made as early as 1852, and has been adhered to ever since. (Kent v. Laffan, 2 Cal. 595; McMillan v. Richards, Id. 412.) It is very generally conceded by the profession that the decision was based upon an erroneous construction of the statute; but, admitting this to be true, it is too late to interfere with it; rights of property of vast value have grown up under the decision which no Court is at liberty at this day to disturb. If a different rule is to be established hereafter it must be by legislative enactment. Such being the case, two questions are presented for determination: first, whether the term “ months ” in the statute is to be construed to mean lunar or calendar months; and second, if construed to mean calendar months, whether the deed of the Sheriff was void or merely voidable.

1. We were under the impression on the argument that the meaning of the term “ months,” when used in the Acts of the Legislature and in public documents, had been settled by statute, but we have been unable to find any legislative provision on the subject, and counsel have not called our attention to any, if any exist. We must construe it, therefore, as we would any other term which the Legislature has used, and to which it has not affixed a special definition. It is not a technical term, and it must, therefore, be taken in its ordinary and general sense. This is a settled rule of construction, and under it the question presented becomes one of easy solution. In the general and popular use of the term, calendar months are always intended; and “ the popular meaning of a term used in a statute, made to be understood and practiced upon by the people,” says the Supreme Court of Connecticut, “ is the only intendment that ought to be adopted.” And it is upon this principle, the Court continues, that the “ word ‘ month ’ has invariably been expounded to mean calendar month; that is, to mean what every one, not a lawyer by profession, believes the word to mean.” (Strong v. Birchard, 5 Conn. 361.) A similar view is taken by the Court of Appeals of Virginia, in Brewer v. Harris (5 Grattan, 298) : “In the use of language not technical,” says the Court, “ the Legislature must be supposed to express their meaning according to the sense in which it will be understood by the persons for whom they legislate.” (See, also, Avery v. Pixley, 4 Mass. 460; Kimball v. Lamson, 2 Verm. 138 ; Commonwealth v. Chambre, 4 Dall. 143 ; Bartol v. Calvert, Administrator, 21 Ala. 46.) The reasons upon which the doctrine prevailing in England rests, where, in the absence of any designation, the term “ months ” in statutes is generally construed to mean lunar and not calendar months, are insufficient to overcome the considerations we have stated.

2. The deed having been executed before the expiration of the statutory period allowed for redemption, the question arises, whether it is void or only voidable. The plaintiff contends that it is only voidable—by which he means, as we suppose, that it is good until set aside by direct application to the Court, and that it cannot be attacked collaterally. If this be his meaning, the position is untenable. The real question is one of power. Had the Sheriff authority to execute the deed at the time ?—and to this there can be but one answer. His power did not arise until the six months had elapsed.

Judgment reversed and cause remanded for a new trial.