Worley v. Naylor

By the Court — Atwatee, J. — This was an action brought by the Appellants to set aside a sale of certain real estate, upon a foreclosure of mortgage by advertisement. The cause was tried by the Court, and judgment rendered for the Defendants, from which they appeal to this Court. Two objections are made by the Plaintiffs to this sale. Eirst — that the notice of sale was not published the length of time required by statute; and second — that the land was not sold in separate parcels, or tracts, and is therefore invalid. With regard to the first point, the Court below finds that the notice of sale was published in the Saint Peter Bree Press, a newspaper published in Nicollet County, in which the mortgaged premises'were situated,; “that the said notice was published in the said paper for the first time on the third day of August, A. D. 1859, and was so published for each week successively up to, and including the 14th day of September of the said year, on which day the sale was made. The paper in which said notice was published, was printed on publication day about noon, -and deposited by the publishers in the post office in the town of Saint Peter, about tea time of same day, but occasional numbers of the paper were delivered on publication day to town subscribers, who came into the office prior to the time of deposit in the post office, and shortly after the paper was printed.” The statute governing the publication of legal notices, is found on p. 630, Comp. Stat., sec. 43, and provides that “the time for publication of legal notices must be computed so as to exclude the first day of publication, and to include the day on which the act or event of which notice is given is to happen, or which completes the full period required for pub [200] lication.” This is a general provision applicable to all cases not otherwise specifically provided for. Sec. 4 of p. 644, Comp. Stat., provides that notice of sale shall be given by publishing the same for sis successive weeks at least once in each week, but does not define precisely how the time shall be computed; providing however, that the publication shall be at least six weeks. Applying the rule above quoted to this case, it appears that the notice was published six weeks, as required by statute. Excluding the 3d day of August, the day of the first publication, and including the 14th day of September, the day of the sale, makes forty-two days, or six weeks of seven days each. The notice was in fact published seven times, once more than was requisite. The day which completed the full period required for publication was the forty-second, excluding the first, and that day is to be included in the computation, as that on which the “act” or “event,” of which notice is given is to happen, that is, the sale in the cause. We know of no rule on which it can be contended, that both the first and last days of publication are to be excluded, in computing the six weeks, where the last publication is on the forty-third day from the first. It will be observed that Section 4 above referred-to, does not provide that there shall be six weeks before, or exclusive of the day of sale, but leaves the computation to be controlled by the general rule. But even in cases where this word is used, it has been held that the day on which the act is to be done, or event happen, is to be included. N. Y. Code, sec. 256; Comp. Stat., p. 558, sec. 8; 5 How. Pr. R., 117; 3 How., 412; 11 How., 193. And where, under the law of New York, personal notice of the sale was to be served on the mortgagor, fourteen days before the sale, a service on the first for the fifteenth was held good. Westgate vs. Handlin, 7 How., 372. As the statute has specifically provided for the computation of time in these cases, that must govern, and it is unnecessary further to discuss the bearing of decisions in analagous cases, but under different statutes or rules of court. With regard to the second objection, the facts found by the Court are substantially as follows : that “ the land described in the mortgage lay in three distinct sections, and in two dis [201] tinct townships. The south half of the southwest quarter, and the northeast quarter of the southwest quarter, and the southwest quarter of the southeast quarter of section number 33, township number 110, R. 27 W.,was deeded by Alexander and Ulysses Naylor to the Plaintiff, Mary G. W orley. The northwest quarter of section number four, T. 109, R. 27, W. was deeded by Ulysses Naylor to Plaintiff, Mary G. Worley. The south half of the northeast quarter of section No. 10, T. 109, R. 27 W., was deeded by Alex. Naylor to the Plaintiff. All the land described in the mortgage, except the south half of the northeast quarter of section 10, T. 109, R. 27 West, lay contiguous and in one body, and was, on the day of sale offered and sold as one tract. The 80 acre tract last above described was, by the Sheriff, on the day of sale, sold separate from the rest, and was by him sold as one tract or parcel of land.” The Appellant claims that the premises were not sold in “ separate parcels,” as required by Statute, and that they should have been offered and sold according to government legal subdivisions. The land was offered and sold in two parcels, one of 320 acres, and one of 80 acres. Sec. 8, of page 644, Comp. Stat. provides that “ if the mortgaged premises consist of distinct farms, tracts or lots, they shall be sold separately, and no more farms, tracts or lots pb all be sold than shall be necessary to satisfy the amount due on the mortgage at the date of the notice of sale, with interest, and the costs and expenses allowed by law.” In regard to the first parcel of 320' acres, the complaint alleges that “ the said land being in four separate and distinct subdivisions, tracts or lots, and being two distinct farms.” Whether the premises consisted of two or more distinct farms or tracts, was a matter to be determinéd by the evidence. All -that appears upon the subject, in the case presented to this Court, is in the finding of the facts by the Judge who tried the cause, who states that the same “ lay contiguous and in one body.” It is admitted, however, that the same lay in different townships and sections. The question, therefore presented is, whether the Sheriff was bound to offer the premises [202] for sale by government subdivisions, or in as small subdivisions or parcels as are described in tbe mortgage. We cannot think it was intended by the Legislature to give the Statute above quoted as limited a signification as is claimed for it by the Appellant. The language must be taken in its ordinary acceptation ; and the meaning of the word farm, as given by Webster, expresses, perhaps, the popular idea, as correctly as any other that could be given. He defines it as “a portion or tract of land, consisting, usually, of grass land, meadow, pasture, tillage and woodland, cultivated by one man, and usually owned by him in fee.” It could scarcely be claimed that because such a body of land might be made up of land laying in different sections, or even townships, that such parcels constituted “ distinct ” farms, either within the purview of the statute, or in any manner whatever. Nor would the fact, that such body of land had been acquired from different owners, make distinct farms of the parcels in the hands of the purchaser. The objeet with which a body of land is held by the owner or occupant, the manner of its use, and the conveniences attaching to it for farming purposes, would be circumstances entitled to far more weight in determining whether it is to be considered as one farm, than imaginary lines drawn by government for its convenience in disposing of the land. The use of the term “ distinct,” in this connection, must mean a separation, by some natural means or boundary, or by intervening space, and not simply a portion which may be described by arbitrary imaginary lines. Clearly so, as applied to farms, since no farmer, having under improvement a body of land composed of different subdivisions lying contiguous, ever speaks of them as different farms. And if such be the construction as to the word “ farms,” it must equally apply to the word “ tracts,” used in the same connection, and having reference to the same subject matter. If by the terms employed in this section,the Legislature intended that the farms or tracts of which the mortgaged premises consist, should only be sold according to the legal subdivisions recognized by government, they have adopted language but poorly calculated to convey their meaning, when the most apposite terms would seem ready at hand. By the [203] use of the word lots, I understand to be meant town or city-lots, which, in conveyancing and sales, are usually described by their numbei s upon a recorded plat. In a statutory foreclosure, the aid of a Court of Equity is not invoked, and the object of the Statute regulating these sales, is to have them fairly made, and as nearly in accordance with the principles established by Courts of Equity in like cases as may be. It is a well settled and familiar principle with these courts, that the mortgaged property shall be so disposed of as to bring the best price possible, consistently with the preservation of the rights of the mortgagee ; but there are no arbitrary and inflexible rules requiring property to be offered and sold in legal subdivisions, or in any particular pareéis or quantities. Each case must depend upon its own particular circumstances, and where any question is made as to the proper method of sale, the Court will order proofs to be taken, in order to give directions as to the disposition of the property. In the case at bar, unless the Statute itself requires the premises to be sold in legal subdivisions, the Plaintiffs fail to make out a case for the interference of this Court, since the allegations of the bill are not sufficiently definite and specific in showing injury sustained by the sale as it was actually made; nor has the defect been supplied by the proof. Even where a sale is made in accordance with the provisions of statute, circumstances may exist entitling the mortgagor to relief, and where these are made clearly to appear, a Court of Equity would be justified in interfering to protect the interests of the mortgagor. But such a case is not here presented, and the judgment below must be affirmed.