Printup v. Kenner

180 N.W. 512 | S.D. | 1920

Lead Opinion

McCOY, P. J.

This action was instituted by plaintiffs, as alleged owners of certain real estate, to restrain the sheriff from making- an execution sale of said lands under judgments rendered against alleged former owners. The defendant sheriff made answer, denying plaintiffs’ ownership. and affirmatively alleging the rendition of said judgments against the Binghams, prior owners, and the issuance of execution thereunder requiring defendant, as sheriff, to make sale of said lands. Diana and 'Charlotte Bingham intervened in the action, each claiming an interest in said lands, and alleging the foreclosure sale, under which plaintiffs claimed title, to be void, and praying judgment determining all adverse rights, titles, and interest therein. From a judgment in favor of the interveners, dismissing the action upon the merits on the ground that the mortgage foreclosure sale under which plaintiffs claim title was void, the plaintiffs appeal.

There is no dispute in regard to the facts, the same having-been stipulated to by the respective parties. Appellants, the plaintiffs claim title under mortgage foreclosure sale by advertisement. It is conceded by respondents that, if the said mortgage sale was valid, appellants have good title and should prevail on this appeal; while, on the other hand, the appellants concede that if the said sale was void, for want of publication of legal notice thereof, the judgment appealed from should be affirmed. The proceedings to foreclose said mortgage were commenced on December 18, 1917. The notice of sale was published on Fridays, December 2-1 and 28, 1917, and January 4, n, 18, and 25, 1918, and the sale was made on Saturday, the 26th day of January, 19x8. Section 2879, Code 1919, in force at the time of said sale, provides:

“Notice that such mortgage will be foreclosed by a sale of the mortgaged premises, or some part of them, must be given, by publishing- the same, for six successive weeks, at least once in each week, in a newspaper of the county where the premises intended to be sold, or some of them, are situated, if there be one, and if not, then in the nearest published in the state.”

Section 8, Code 1919, in force at the time of said sale, provides :

“Whenever, in any act or statute providing for the publishing of notices, the phrase ‘successive weeks’ is used, the term ‘weeks’ should be construed to mean calendar weeks, and the publication upon any day in such weeks shall be sufficient publication for that week: Provided, that at least five days shall intervene between such publications, and all publications heretofore or hereafter made in accordance with the provisions of this section shall be deemed legal and valid.”

[1] It is the contention of respondents that under these provisions of the statute a legal foreclosure sale could not be made until after the full expiration of the si-xth calendar week; that is, a sale could not be legally made during the week within which the last publication was made, as the calendar week begins on 'Sunday and ends with 'Saturday, and that the sale in question was made before full 6 weeks’ notice had been given.

The state of North Dakota has precisely the same statutory provisions in relation to the publication of such notices. In the case of Cotton v. Horton, 22 N. D. 1, 132 N. W. 225, the Supreme Court of that state, in construing said sections of statute, said:

“We believe the plain reading of the first part of this chapter is that a publication upon any day of the first week of the ‘six successive weeks’ should' be sufficient publication for the entire calendar week, commencing 'Sunday morning. A similar publication for six successive w’eeks would satisfy the law. The sale might be held upon the first week day of the seventh week.”

[2] We are of the view that this interpretation and construction placed upon these sections of the statute bjr the North Dakota Supreme Court was correct, and that the decision of this court in the case of Thomas v. Issenhuth, 18 S. D. 303, 100 N. W. 436, was an incorrect and erroneous construction of these sections of our statute. However, we are of the opinion, under the rule or maxim of stare decisis, that we should now adhere to the decision in Thomas v. Issenhuth. The facts of that case were precisely the same as in this. Dor 16 years that decision has been a rule of property in this state. The maxim of stare decisis is founded on reason and sound public policy.

“Without its observance the law is divested of one of its most important attributes, becomes fluctuating and capricious, and, instead of being a steady light to guide or shield to protect, becomes an ignis fatuus to mislead or a snare to entrap the citizen.”

“Stare decisis is a name given to a doctrine that, when the court has once laid down a principle of law as applicable to a certain state of fact's, it will adhere to that principle, and apply it to all further cases where the facts are substantially the same.” 7 Words and Phrases, p. 6627; Moore v. Albany, 98 N. Y. 396; Hart v. Ry. Co., 65 App. Div. 493, 72 N. Y. Supp. 797.

“When a court comes to the 'deliberate conclusion that it has made a mistake, * * * it is better * * * that it * * * frankly acknowledge its mistake and declare the true doctrine as it should have been. * * * When, however, a decision has become an established rule of property, it is never to be overthrown, except from the most urgent considerations of public policy.” Hines v. Driver, 89 Ind. 339.

This case is to be distinguished from Brekkc v. Crew, 178 N. W. 146, in that a majority of this court, in that case, were of the opinion that the decision in Joas v. Jordan, 21 S. D. 379, 113 N. W. 73, was of such a character as not to establish or refer to a rule of property, so. as to make the doctrine’ of stare decisis applicable thereto. This case at. bar does not involve an important principle of law, as was the case in Brekke v. Crew.

. The judgment appealed from is reversed, with directions that judgment be entered in favor of appellants, substantially to the effect that appellants, at the time of the commencement of this action, wlere the absolute owners in fee of said lands as against respondents, the interveners, and as against said defendant, sheriff, and that respondents and said sheriff be restrained from in any manner interfering with appellants’ said ownership by reason of any of the matters and things involved in this action.

---

Concurrence Opinion

GATES and SMITH, JJ.

(concurring specially.) We concur with everything that is said in the opinion, except the following: ’

“This case is to be distinguished from Brekke v. Crew, 178 N. W. 146, in that a majority of this court, in that case, were of the opinion that the decision in Joas v. Jordan, 21 S. D. 379, 113 N. W. 73, was of such a character as not to establish or refer to a rule of property, so as to make the doctrine of stare decisis applicable thereto. This case at bar does not involve an importan! principle of law, as was the case in Brekke v. Crew.”

We do not think this case is distinguishable in principle from Brekke v. Crew, supra, nor can we agree that the present, case does not involve an important principle of law.