Koch & Dryfus v. Bridges

45 Miss. 247 | Miss. | 1871

Peyton, C. J.:

Nathan Koch and Leon Dreyfus, on the 8th day of June, 1870, filed their bill of complaint in the chancery court of Pike county, against H. Q. Bridges, S. L. Weathersby, and M. E. Weathersby, alleging that Samuel Kaiser and Albert Cohen recovered a judgment in the circuit court of said county against Nathan Schwab, on the 6th day of March, A. D. 1860, for the sum of $155 21, which was regularly enrolled, as the law requires, on the 20th day of March, 1860. And at the time of the rendition of said judgment against him, the said Schwab possessed and owned in his own right a certain parcel or lot of land in the town of Summit, in said county.

That the said Nathan Schwab, on the 11th day of December, 1860, executed a mortgage of the same property to one H. E. Weathersby, to secure the payment to him of the sum of $700, which mortgage was duly acknowledged and recorded.

That on the 25th day of July, 1866, Seaborn L. Weathersby and M. E. Weathersby, administrator and administratrix of the estate of said H. E. Weathersby, deceased, filed their bill in the chancery court of said county to foreclose the equity of redemption, and to sell the said lot for the payment and satisfaction of the debt secured by said mortgage.

That on the 31st day of March, 1868, pluries execution was issued on said judgment of Kaiser and Cohen against said Nathan Schwab, under and by virtue of which the said lot of land was sold by the sheriff, in the town of Summit, on the 4th day of May, 1868, to the said Kock and Dreyfus, for the sum of $.180, to whom the sheriff executed and delivered a deed for the same, which was duly acknowledged and recorded.

That on the 19th day of March, 1870, a decree was rendered by said chancery court foreclosing the equity of redemption, and ordering the property to be sold for the payment of the debt secured by the mortgage, and H. Q. Bridges was appointed by the court a special commissioner to execute said decree, who was proceeding to execute the same. The bill concludes with a prayer for an injunction restraining the said commissioner and administrators from further proceeding under said decree, and that, upon final hearing of the cause, the injunction may be perpetuated.

The defendants appeared and demurred to the said bill of complaint for the following causes:

1. There is no equity on the face of the bill.

2. The complainants have failed to show any title in themselves to the land in controversy.

3. That the place of sale mentioned in said bill, to wit, the market house in the town of Summit, is not a legal place for a sheriff’s sale of land.

The demurrer was sustained by the court and the bill dismissed. And hence the case comes to this court by appeal on the part of the complainants, who assign for error the action of the court below in sustaining the demurrer and dismissing the bill.

There is but one question in this case and that involves the'construction of our statute which provides that “all sales by any sheriff or other officer, by virtue of any execution or other process, shall be made at the court-house of the county, except when personal property, too cumbersome to be removed, shall be levied on, which may be sold at the place where the same may be found, or at any other convenient place, and also except where cattle, hogs, sheep or stock, other than horses and mules, are levied on, the sale of which may be made within the usual hours, on ten days’ notice, at the most public place in the neighborhood of the defendant; and such sales may be made on the first Monday of every month, or on the first Monday or Tuesday of each term of the circuit court of the county.” Rev. Code, 528, art. 277.

The obvious principle that prevails in all rules of construction of statutes is, to carry into effect the intent of the legislature and to secure the object intended to be secured by the statute. This statute was evidently intended to secure certainty and uniformity as to the place of sale of land by the sheriff under execution or other process at law. The public are presumed to know the place designated by the law for the sale of real estate under an execution at law, and every person wishing to purchase such property would know, without reference to advertisements, where the sale should take place. If this provision of the statute were merely directory, the sheriff, instead of selling at the courthouse, the most public place in the county, might sell in the most obscure corner of the county without giving the notice directed by law to a bona fide purchaser, at a great sacrifice of property, for the want of public notice of the time and place of sale. Against this evil the law intended to provide by fixing the time and place of sale of this kind of property ; and to construe this provision of the statute with respect to the place of sale in any other way than as imperative, would tend to defeat instead of carrying into effect the intent and object of the law-makers, and would be at war with the well-settled rule of construction above alluded to. To our minds it is obvious at least, that the surest if not the only way of effectuating that intent, and guarding against the evils at which it was aimed; is to hold the requisition of the act imperative.

The counsel for the appellants contend, that the provision of the statute pointing out the place of sale of real estate is merely directory, and a sale at any other place would be equally valid. We do not concur with the counsel in this view of the law.

This mode of getting rid of a statutory provision by calling it directory is not only unsatisfactory, on account of the vagueness of the rule itself, but it is the exercise of a dispensing power by the courts, which approaches so near legislative discretion that it ought to be resorted to with reluctance, only in extraordinary cases, where great public mischief would otherwise ensue, or important private interests demand the application of the rule. There is no more propriety in dispensing with one positive requirement than another; a whole statute may be thus dispensed with when in the way of the caprice or will of a judge. And besides, it vests a discretionary power in the ministerial officers of the law which is dangerous to private rights ; and the public inconvenience, occasioned by the want of uniformity in the mode of exercising a power, is a strong reason for bridling this discretion. It is dangerous to attempt to be wiser than the law, and when its requirements are plain and positive, the courts are not called upon to give reasons why it was enacted. A judge should rarely take upon himself to say that what the legislature have required is unnecessary. He may not see the necessity of it, still it is not safe to assume that the legislature did not have a reason for - it; perhaps it only aimed at certainty and uniformity. In that case, the judge cannot interfere to defeat that object however puerile it may appear. It is admitted that there are cases where the requirements may be deemed directory. But it may be safely affirmed that it can never be where the act, or the omission of it, can, by any possibility work advantage or injury, however slight, to any one affected by it. In such case, the requirement of the statute can never be dispensed with.

The legislative body is the supreme power of the state, and, whenever it acts within the pale of its constitutional authority, the judiciary is bound by it, and it is not competent tó the latter tribunal to dispense with a regulation or requisition plainly prescribed by the former, or, to say that this mode, that, or the other, is as good as the one dictated by the legislature ; for this, in fact, would be placing the judiciary above the legislature, by enabling the former to nullify the acts of the latter, or to supersede them by substitutes to which the legislature might not have assented had the proposition been submitted to it. The intention of the legislature should control, absolutely, the action of the judiciary. Where that intention is clearly ascertained, the courts have no other duty to perform than to execute the legislative will, without any regard to their own views as to the wisdom or justice of the particular enactment. No principle is more firmly established, or rests on more secure foundations, than the rule which declares when a law is plain and unambiguous, whether it be expressed in general or limited terms, that the legislature shall be intended to mean what they have plainly expressed, and, consequently, no room is left for construction. And courts should adhere to the cardinal rule, that-the judicial functions are always best discharged by an honest and earnest desire to ascertain and carry into effect the intention of the law-making body.

Negative words will make a statute imperative.; and, it is apprehended, affirmative may, if they are absolute, explicit and peremptory, and show that no discretion is intended to be given. Dwarris on Stat. 228. Affirmative words in a statute may be construed as a negative of what is not affirmed. Byron v. Sundburgh, 5 Texas, 428. Affirmatives in statutes that introduce new laws imply a negative of all that is not in purview; so that a law directing a thing to be done in a certain manner, implies that it shall not be done in any other manner. United States v. Case of Han Purals, 1 Paine, 406; and 6 Dane’s Abr. 591 to 593. It is only when a statute is ambiguous in its terms, that courts may rightfully exercise the power of controlling its language, so as to give effect to what they may suppose to have been the intention of the law-makers. Wood v. Adams, 35 N. H. 36. Denman, Ch. J., in 4 Nev. & Man. 426, said: “Where I find the words of a statute perfectly clear, I shall adhere to the words.”

Statutory requisitions are deemed directory only when they relate to some immaterial matter, where a compliance is matter of convenience rather than of substance. The People v. Schermerhorn, 19 Barb. 540; Hardin v. Owing, 1 Bibb, 205. But when a power to affect property is conferred by statute upon those who have no personal interest in it, such power can be exercised only in the manner and under the circumstances specified. Strict compliance is necessary in all the essential prerequisites ; and this makes the statute mandatory. And this accords with the doctrine laid down by Lord Mansfield, in the case of Rex v. Loxdale, 1 Burr. 447, in which he says: “There is a known distinction between circumstances which are of the essence of a thing required to be done by an act of parliament, and clauses merely directory.”

In the case under under consideration, the place of sale is believed to be of the essence of the sale, and that the statute in this respect is mandatory. And this construction of the statute is sustained by the exceptions contained in it. These exceptions prove the rule, where in an instrument or a statute there are general words first and an express exception afterward, the ordinary principle of law has been said to apply expressio unius est exclusio alterius. If the statute, with respect to the place of sale is merely directory, as insisted by the counsel for the appellants, and the sheriff could sell at any place in the county, the exceptions expressed in the statute would be entirely useless and without effect. But statutes are to be interpreted so as to give effect to all the words therein, if such interpretation be reasonable, and be neither repugnant to the provisions nor inconsistent with the objects Of the statute. Every part of the statute must be viewed in connection with the whole so as to make all its parts harmonious, if practicable, and if it will admit of a construction which will give effect and operation to every part, it ought never to be construed so as to draw after it unnecessary and superfluous provisions. It is never to be presumed that the legislature intended that any part of a statute should be without its proper meaning, force or effect. To give the construction contended fot on the part of the appellants would be a judicial repeal of the statute.

In the case of Merchant v. Langworthy, 6 Hill, 647, an annual meeting was required to be held in each school district, and at each annual meeting, the time and place of holding the next annual meeting was to be fixed. For greater caution and to give greater publicity to the meeting, the statute directed the clerk to post notice of it, but that was not regarded as essential to its validity. The court said: “ The time and place of holding it may always be ascertained by examining the clerk’s records; and an objection that notice was not duly posted should never be allowed to prevail. The foundation of the meeting is the order of the previous annual meeting, not the posting notice of the clerk; the former is indispensable, but not the latter.” So, in the case at bar, the place of sale of land by a sheriff under execution at law, may always be ascertained by reference to the statute. This gives the legal notice of the place of sale and not the advertisement by the sheriff, the former is indispensable, but not the latter.

The case of Howe v. Starkweather, 17 Mass. 243, decides that mere irregularity of the officer will not vitiate the sale. “Purchases (say the court) would not be made, and the interests of both debtor and creditor would suffer, if sales, made by one having lawful authority, and appearing to have exercised it lawfully, should be avoided on account of some irregularity, which could not be known at the time.” The doctrine of this case was referred to and approved by this court in the case of The President and Selectment of Natchez v. Minor, 10 Smedes & Marsh. 261. In that case, it was decided that the irregularity of the officer in giving notice of the sale could not affect a bona fide purchaser at the sale, for the reason that the irregularity could not be known to him at the time of the sale, but this reason does not exist where the sale is made at a place unauthorized by law. The statute points out the place of sale of real estate, and every purchaser at such sale is presumed to know it; for it is a fundamental principle, that ignorance of the law, which every man is presumed to know, does not afford excuse, the maxim being ignorantia juris quod quisque scire tenetur neminem excusat. Every man is presumed to be cognizant of the statute law of his state, and to construe it aright, and if any individual should infringe it through ignorance, he must, nevertheless, abide the consequences of his error. It will not be competent to him to aver, in a court of justice, that he has mistaken the law, this being a plea which no court of justice is at liberty to receive. The law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. Broom’s Legal Maxims, 249.

It is not so, however, with regard to notices of sale, which are matters en pais, and the purchaser may not know "whether (the officer «gave them or sot, and he may safely repose upon the i<?gal presumption that the officer in this; respect did his duty. If this were not so, and the purchasers had to depend for title upon the regularity of the-advertisement of .sale, property would never command’ its; value, and great .-sacrifice would be the result. No one would buy unless ¡satisfied that proper notices had been given, a fact not likely to be known to many, and perhaps by none of the bystanders at a sheriff’s sale, if they were . necessary ;te> the validity of the purchase at such sale.

We have .arrived at the conclusion that the statute as to ¡the place of sale of land, by a sheriff or other officer, under ■execution at law, as imperative, and as to giving notices of rthe sale, it as merely directory. It necessarily results from '■this view of the law, that the appellant acquired no title to tfche property in controversy at the sheriff’s sale in the town -of Summit, and that there is no error in the decree of the «court below.

“The decree ¿must, therefore, be affirmed.