Perkins v. Keller

4 N.W. 559 | Mich. | 1880

The defendants Keller and Ancel bring up this cause on case made, alleging errors which they claim prejudiced them in the court below.

Perkins and Sumner sued in ejectment, and defendants set up title under a mortgage foreclosure by advertisement. This was objected to as irregular on two grounds: first, that the deed on foreclosure was not filed in the register's office until twenty days after sale; andsecond, that the publication of notice was imperfect.

Upon the first point we think the objection is not well taken. We have held in Lilly v. Gibbs 39 Mich. 394, that the time of redemption in such a case does not begin to run until the deed is filed. In Doylev. Howard that a brief delay, while it might subject the sheriff to a mandamus requiring him to perform his duty, ought not to entirely destroy the foreclosure. It does not seem to us reasonable to regard the delay of twenty days as of itself enough to subject the purchaser to any other loss than the extension of the right of redemption for that period.

The other question is more serious and is not without difficulty.

The statute under which the foreclosure was had requires notice to be published for twelve successive weeks, at least once in each week, "in a newspaper printed in the county where the premises included in the mortgage and intended to be sold, or some part of them, are situated, if there be one; and if no newspaper be printed in such county, then such notice shall be published in a paper published nearest thereto." Comp L., § 6914.

By section 6917 any postponement is required to be published "in the newspaper in which the original advertisement was published," etc. And by section 6926 the affidavit of publication of notice is to be made "by the printer of the newspaper in which the same was inserted, or by some person in his employ knowing the facts."

The notice of foreclosure in the present case was published long enough, but a change was made during the publication which was held by the court below to have destroyed its legal continuity. It was begun in a newspaper published at Wenona, opposite Bay City, called the WenonaHerald. Before it had been published twelve weeks the proprietors of the paper removed their establishment across the river to the Bay CityHerald. There was no other change made, and the Bay City Herald was kept up on the same subscription list, with no more difference in subscribers than arises from the occasional dropping of one and accession of another. No change was adopted in the make-up of the paper except in the change of heading. The notices which had been set up in Wenona were continued from the same type and forms, which were not broken up or distributed.

Inasmuch as there has been no change in the county of publication, it is not claimed that either paper (supposing them to be distinct) would not have been competent to publish a lawful notice. It is not claimed, on the other hand, that the statute will permit a publication to be begun in one paper and finished in another. The only question, therefore, is whether the Bay City Herald is the same paper as the Wenona Herald. And the inquiry is narrowed down to whether change of place and change of name destroy legal identity.

Change of place certainly does not. The same newspaper or magazine is often published at different times in different towns or cities, and in different places in the same city. Some of the leading reviews both in Great Britain and America have been published at different times in cities remote from each other and in different states and countries. No doubt such changes might be such as to destroy their competency to publish some legal notices, but no one ever supposed they were not in the general understanding, continuous enterprises. The good will of such publication is sometimes their most valuable property, and the chief value of that has consisted in the reputation derived not from locality but from management. Changes of ownership even do not always make any serious difference in the popularly recognized identity any more than in corporations. It is not easy to define in words precisely what makes the identity of the Edinburgh Review, or of one of our American monthlies, but very few subscribers or readers are curious to know the locality of the printing or publication office.

In Hinchman v. Barns 21 Mich. 556, where it was insisted a special partnership had not been legally formed because the newspapers in which notices were published had their offices in a different ward and senatorial district from the place of partnership business (the latter being in the second senatorial district and the newspapers being published in the first) it was held by this court that inasmuch as both the business of the firm and the newspaper offices were within the city of Detroit, the notices were good, and the whole city might be treated as the place of publication. It was there intimated, though not decided, that when the Legislature refers to a town, city or county as the place of publication, it does not forbid a changes of place, or require publication in any particular place within any of those precincts. And reference was made to changes of location from fire or accident or other cause as not changing the rights or identity of the concern. It would be unreasonable and it could do no one any good to allow accidents or removals of business stands to destroy substantial rights. It is not desirable to render mortgage sales precarious beyond the necessary requirements of the statutes. If this paper had been called the Bay County Herald, it can hardly be seriously claimed that a removal of its office a few rods, from Wenona into Bay City, would have been more injurious than its removal from one part of Bay City to another, or would have raised any suspicion of change of identity.

It seems to us that a change of name does not necessarily produce any destruction of identity, so long as there is no change in the enterprise itself. The name of a paper has the same significance as the name of a man or of a corporation. It is in each of those cases the primary legal means of identification. But men may have their names changed without prejudice to their rights or responsibilities, and so may corporations both public and private. The seat of government of this State and several of its cities and counties, as well as towns, have been changed in name and in boundaries, with no loss or change of individuality. If any difficulty is caused in determining such identity, it is a question of fact to be settled by proof. It certainly was possible in removing to Bay City, to created a substantially new journal, but we think it was equally possible to continue the old one. Had the place of publication been continued at Wenona, some change of name would have been likely, if not necessary, when Wenona ceased to be called Wenona, and became West Bay City. The continuation of the old name might have become a practical misnomer.

We think when the notice is shown to have been published continuously in the same county, by the same business firm, in the same printing establishment, from the same type and forms, and in a paper which is intended to be the same, and having the same readers, called the Bay CityHerald, merely from its transfer of locality in the same vicinage, may properly be regarded as the same paper throughout. Since the argument our attention has been called to Sage v. Central R.R. Co. 99 U.S. 334, holding the same views.

The court below erred in ruling otherwise, and the judgment must be reversed with costs and a new trial granted.

The other Justices concurred.