10 A. 625 | R.I. | 1887
The defendant Bassett sold to the defendant Brown a lot of land in Providence, under a power of sale contained in a mortgage deed, of which Bassett was the assignee. After the sale, the complainant, a judgment creditor of the mortgagor, bought the mortgagor's interest in the land at the execution sale, under a levy which had been made before the mortgage sale took place. The complainant brings this bill to redeem, claiming that there has been no valid sale under the power contained in the mortgage, because the requirement of the power, "first giving twenty days' notice of such sale in some one of the public newspapers printed in said city of Providence," has not been complied with. The mortgage sale took place August 12, 1885. The notice was published in the "Evening Mail," a daily newspaper printed in Providence, seven times, viz., July 22d, 25th, 29th, August 1st, 5th, 8th, and 11th. The question is whether such a publication of the notice satisfies the requirement of the power. We do not think it does. The evident purpose of the requirement is to secure ample notice of the sale, for the mutual advantage of the mortgagor and mortgagee. The mortgagee is allowed to select the newspaper in which he will give the notice; but the extent of the notice is definitely expressed. It must be "twenty days' notice." We think the fair and natural interpretation of that phrase is that the notice is to be continuous, in the paper selected, for twenty days. The defendants contend that, inasmuch as the notice covered a period of twenty days, it was "twenty days' notice." But if seven insertions in a daily paper, covering the time, is to be held equivalent to twenty days' notice, why would not two, say on the first and last days of a period of twenty days, or even one twenty days before the sale? If anything less than a continuous notice is sufficient, we do not see why one or the other of these would not also be sufficient. The defendants say that even this complies with the literal construction of the terms of the power; but that is not enough, if the construction be crafty or technical. Such powers should be construed *565 as people generally, who have to do with them, would be likely to understand them; and we think that the use of the word "days" would suggest, to the ordinary mind, a continuous daily notice, if it be in a daily paper. In Stine v. Wilkson, 10 Mo. 75, 96, "twenty days' previous notice" of the time of sale was required. One notice was published in a daily newspaper twenty-one days before the sale, and after that the notice was published, less than twenty days, in another paper, which was a weekly reprint of the daily. This was held to be insufficient notice. The court says: "Would one publication of a notice by a sheriff of an intended sale of real estate under execution, made in a newspaper twenty days before the day of sale, be held to be a compliance with the requisition of the statute, which directs him to give twenty days' previous notice of the time, etc., by an advertisement in some newspaper printed in the county, etc.? We apprehend that such is not the general understanding nor the practice in the country, but that such notices are continued to be published until the day of sale." This case is cited by the court, with apparent approval, in The German Bank v. Stumpf, 73 Mo. 311. See, also Leffler v. Armstrong, 4 Iowa, 482.
In Kellogg v. Carrico, 47 Mo. 157, the deed required thirty days' notice. The publication covered a period of thirty-four days, and appeared in each daily issue of the paper, there being no issue on Sundays. Held, that the Sunday omissions did not vitiate the notice, because it was continuous. See, also,Cushman v. Stone,
In Harris, Petitioner,