The action was instituted by plaintiff against defendant to remove cloud from title. It was decided by the court below on the "statement of case agreed." The material facts will be considered in the opinion. *Page 477 The power of sale contained in the mortgage, and the subject-matter of the controversy, is as follows: "But if default be made in the payment of said notes, or either of them, or the interest on same, or any part of either at maturity, then and in that event it shall be lawful for and the duty of the said H. H. Powell or his assignee to sell said lands hereinbefore described to the highest bidder, for cash (on the premises), first advertising same for thirty days in some newspaper published in Wilson County, and by posting notices in some conspicuous place in said county and at the courthouse door for at least twenty days before the sale."
In Hinton v. Hall,
It appears in the case agreed:
"On 11 June, 1917, a notice of the sale of the property under mortgage, signed by H. H. Powell, mortgagee, by his attorney, was posted at the courthouse door in Wilson, North Carolina, and three other public places in Wilson County, in which notice was given that the mortgagee would sell the property because of default in the payment of the notes secured by the mortgage, on Monday, 16 July, 1917, at 12 o'clock noon, on the premises, in the town of Stantonsburg, North Carolina, and on 15 June, 1917, a notice was published in the Semi-Weekly Times as follows: `Sale of real estate: By virtue of the power of sale contained in the mortgage executed by J. H. Whitley to the undersigned, dated 8 August, 1914, and recorded in Book 103, page 237, Wilson County registry, default having been made in the payment of the notes recited therein, the undersigned will, on Monday, 16 July, 1917, at 12 o'clock m., on the premises in the town of Stantonsburg, Wilson County, North Carolina, offer for sale at public auction, to the highest bidder, that certain lot or parcel of land lying and being situate in the *Page 478 town of Stantonsburg, Wilson County, North Carolina, known as the "Garage Lot" and described as follows: (Describing fully the land by metes and bounds.) Terms of sale: Cash.' And a like notice was published in the DailyTimes on 22 June, 3 July, and 10 July, 1917, and on no other dates. The Daily Times is a newspaper published in Wilson daily except Sundays, and the Semi-Weekly Times, twice each, and is in reality a semi-weekly edition of the Daily Times."
The only question raised by the parties is: Whether the publication, on 15 June, 1917, in the Semi-Weekly Times, a newspaper published in Wilson, of the notice of foreclosure, and the publication of a like notice in theDaily Times, a daily newspaper (except Sunday) published at Wilson, N.C. on 22 June, 3 July, and 10 July, 1917, and on no other dates, and the posting at the courthouse door and at three other public places in Wilson County, on 11 June, 1917, of a notice of sale, to be held on 16 July, 1917, was a sufficient compliance with the power of sale contained in the mortgage, requiring as a condition to the exercise of the power, "first advertising same for thirty days in some newspaper published in Wilson County, and by posting notice at some conspicuous place in said county and at the courthouse door for at least twenty days before the sale." The DailyTimes is a newspaper published in Wilson, daily, except Sunday, and theSemi-Weekly Times is a semiweekly edition of the Daily Times. The court below was of the opinion that publication of said notice in the Semi-WeeklyTimes and the Daily Times only on the dates of 15 June, 22 June, 3 July and 10 July, 1917, was not a sufficient compliance with the conditions of the exercise of the power of sale requiring "first advertising same for thirty days in some newspaper published in Wilson County," and that the plaintiff is entitled to the relief demanded. We cannot so hold.
The power of sale in the mortgage must be construed like any other contract. The property was sold on the premises to the highest bidder for cash. It was advertised by posting notices in conspicuous places in the county for 30 days before the sale and at the courthouse door for 30 days before the sale — the contract says at least 20 days before sale. The vice complained of is that it was not advertised each day successively for 30 days in some newspaper published in Wilson County. The language of the contract is conjunctive (1) first advertising same for 30 days in some newspaper published in Wilson County; (2) and first advertising same for 30 days by posting notice in some conspicuous place in said county; (3) andfirst advertising same at the courthouse door for at least 20 days before sale.
It cannot be contended that first advertising same for thirty days by posting notices in some conspicuous place in the county means that each *Page 479
successive day a notice must be posted; nor can it be contended that the posting each successive day is required at the courthouse door. We think the publication as made was a sufficient compliance with the terms of the mortgage. If the mortgagor desired he could have said in the contract eachsuccessive day for thirty days. This was not done. It also appears from the record that there is no newspaper published each successive day in Wilson County. Plaintiff's construction of the power of sale contract would make it, so far as utilizing the power of sale contract, a nullity. This could not be the intent of the parties. The record shows that the sale took place on the premises on 18 July, 1917, and the present suit was not instituted until 20 December, 1921 — over four years after the sale. Under the facts and circumstances of this case, we do not think plaintiff can disaffirm the power of sale contract. Hogan v. Utter,
It was said in Carson v. Fleming,
For the reasons given, there is
Error.