Sears v. Livermore

Oct 21, 1864
Reporters:
Before:
Wright
WRIGHT, Ch. J.

It is very obvious that the vital question in this case is, whether the power of sale conferred by the deed was so executéd as to pass the title to the purchaser.

1. Power of sale: execution. Pertinent to this inquiry, the following familiar rules of law may be stated. The appellant takes under the execution of a power, and of course under its authority, just as if the power, and the instrument executing it, had been incorporated in the same deed. Her title rests upon the act creating the power, and takes effect as if created by the original deed. Marlborough v. Godolphin, 2 Ves., 78; Cook v. Duckerfield,, 2 Atk., 562; Doolittle v. Lewis et al., 7 Johns. Ch., 45. The authority to sell being derived from the power, it follows that the purchaser is bound to look for, and to understand the extent of such power; or, as elsewhere expressed, “ ‍​​​​‌​​‌​​‌‌​‌​‌‌​‌​​‌‌‌‌‌​‌‌‌‌‌‌‌​‌‌‌​​​​‌‌​‌‌​‌‌‌​‌‌​​​‌​‌​​​‌​​​​​‌‌‌‌​‌​‌‌‌​​‌‌‌​‌​​​​​‌‌​​‌‍taking under the power, he is bound to see that its terms are complied with.” Ormsby v. Tarascon, 3 Litt., 410. And, of course, in this, as in all other contracts, the object and design of the parties should be kept strictly in view, in ascertaining the nature and extent of the power.

2. - Jurisdiction. The authority and its exercise are matters of contract. In ascertaining whether the authority has been properly exercised or followed, it is not a question of jurisdiction, as in judicial sales, for it is not from the courts, but from the contract or agreement of the parties, that the power is derived. Hence the cases of Morrow v. Weed et al., 4 Iowa, 78, and others, discussing the same question, cited by appellant’s counsel, have no application.

3. - Must be strictly pursued. In Powell et al. v. Tuttle et al., 3 Com., 401, Harris, J., in speaking of an analogous question, says: “It is a familiar rule of law that a special authority must be strictly pursued. When such authority is prescribed by statute, and when in its exercise it operates to divest the citizen of his property, courts cannot *300be too sedulous in confining it within the boundaries which the legislature have thought fit to prescribe. At this day, and in this country, especially, the protection of private rights demands this safeguard; and he who will review the adjudications of our courts, involving this principle, will be interested to observe with what uniformity and increasing jealousy the exercise of such a power has been restricted to its own specified limits.” And in the same spirit, it is said in Sharp v. Johnson, 4 Hill, 99, that, “ When lands are to be taken under a statute authority, in derogation of the common law, every requisite of ‍​​​​‌​​‌​​‌‌​‌​‌‌​‌​​‌‌‌‌‌​‌‌‌‌‌‌‌​‌‌‌​​​​‌‌​‌‌​‌‌‌​‌‌​​​‌​‌​​​‌​​​​​‌‌‌‌​‌​‌‌‌​​‌‌‌​‌​​​​​‌‌​​‌‍the State, having the semblance of benefit to the owner, must be strictly complied with.” And the rule is even more strict when the authority is found wholly in the contract of the parties. Says a late writer upon this subject, reviewing and summing up the authorities: “ The principle is undisputed and fundamental that directions in powers of sale must be strictly, literally and precisely pursued, and admit of no equivalent or substitution, however unessential they might otherwise have been.” Law Reg., vol. 2, N. S., 714. If the manner of its execution is particularly prescribed in the deed, this must be followed. The designation of a specific mode negatives the right to follow any other. Mr. Justice Washington, in speaking of the duty of the trustee to conform, in making the sale, to the terms of the power under which he proposed to act, says: “ This was the test of value, which the grantor thought proper to require, and it was not competent for the trustee to establish any other, although by doing so he might, in reality, promote the interest of those for whom he acted.” Greenleaf v. Queen et al., 1 Pet., 144, and see 4 Kent, 148 and 190; Dutton v. Colton, 10 Iowa, 408; Burnet et al. v. Deniston et al., 5 Johns. Ch., 35; Wallis v. Thornton, 2 Brock., 422.

*301i _Ap_ piicatiou. *300But without further recurring to principles, we come to the facts of the case before us. The deed required that *301notice should he given by posting the same “ on front door of the hotel.” It is quite conclusively shown that it was not thus posted. Exactly where it was placed, does not very clearly appear from the testimony. It was either on the large or small board referred to by one witness; on ‍​​​​‌​​‌​​‌‌​‌​‌‌​‌​​‌‌‌‌‌​‌‌‌‌‌‌‌​‌‌‌​​​​‌‌​‌‌​‌‌‌​‌‌​​​‌​‌​​​‌​​​​​‌‌‌‌​‌​‌‌‌​​‌‌‌​‌​​​​​‌‌​​‌‍a board within the portico, and within a few feet of the door, as stated in the answer of Schraderon the casings of the door, or on a board standing against the side of the building, according to the recollection of other witnesses. Whether the notice was ever seen by plaintiff does not appear, nor is it material. Eor notice to the world, in the manner prescribed in the deed, is as important to the grantor, and as much the object of requiring notice at all, as notice to him. Now, can it be said that the trustee strictly and precisely followed the directions of his power ? If putting a notice upon a board standing against the side of the building, is a notice upon the door, then he did; otherwise not. The weight of the testimony shows that the notice was thus given, and we so find. That witnesses differ (no two of them agree) as to where the notice was placed, ought, of itself, to lead a court to hesitate long before divesting a citizen of his property, upon a proceeding harsh and severe in its nature, and therefore required to be carried on in strict conformity to the deed. The fact being found as above, however, all fair cause for hesitation is removed, and plaintiff’s equity is apparent.

Eor, if posting in one place is the same as posting in another, or if the doing of one thing is the same as something else (where a strict, and not a substantial compliance is demanded), the plaintiff is without remedy; otherwise not. That notice of the sale was thus more generally known, and more persons called to the sale, than if ‍​​​​‌​​‌​​‌‌​‌​‌‌​‌​​‌‌‌‌‌​‌‌‌‌‌‌‌​‌‌‌​​​​‌‌​‌‌​‌‌‌​‌‌​​​‌​‌​​​‌​​​​​‌‌‌‌​‌​‌‌‌​​‌‌‌​‌​​​​​‌‌​​‌‍given according to the terms of the deed, can make no difference. The parties agreed upon one notice, at one place, and for twenty days. Suppose the trustee posted a thousand notices *302in as many different places in the county, for three months, and had publication made for the same time in the two newspapers of the town of Maquoketa, but failed to place an advertisement at the place required by the deed, would this be a compliance with the power ? Could it be said, there was no prejudice; that all this tended to, and probably did promote the grantor’s or debtor’s interest, and therefore the sale should .be upheld? If so, then the contract amounts to nothing. If so, then a party can just as well be brought into court by having the sheriff, and all the constables in the county, and a hundred of his neighbors, tell him that an action is pending; can just as well be concluded by such notice, as by that required by the statute. Such notice might give him vastly more information than an ordinary “summons,” or the “notice of the statute;” but the cardinal trouble is, that it is not what the law’ requires; and there can be nothing equivalent to this ; the law allows no substitute. To the parties, under such an instrument as this, the contract furnishes the law. Without the notice which they have agreed upon, there is no power to sell; there is no jurisdiction.

That the proprietor of the hotel would not permit such notices to be posted on the door, cannot affect the question. The creditor was not without remedy. The courts were open to him to foreclose his trust deed ‍​​​​‌​​‌​​‌‌​‌​‌‌​‌​​‌‌‌‌‌​‌‌‌‌‌‌‌​‌‌‌​​​​‌‌​‌‌​‌‌‌​‌‌​​​‌​‌​​​‌​​​​​‌‌‌‌​‌​‌‌‌​​‌‌‌​‌​​​​​‌‌​​‌‍as an ordinary mortgage. Dutton v. Cotton, 10 Iowa, 408, is in all forms with this, as to this question. There the law required that one of the notices of a mortgage foreclosure (by the strict method as it is termed) should be posted at the place where the last term of the District Court for the county was held. At the time of the sale, no term had been held in the county where the sale took place, and of course the sheriff could not comply with the law. Three notices were put up, however, one of them being at the office of the District Court clerk. The sale was set aside, and the party turned *303over to his remedy of foreclosure. Let the present creditor pursue the same course, if the debt is not paid and the trustee cannot give notice required by the deed.

Affirmed.