Taylor v. Reid

Mr. Justice Scholfield delivered the opinion of the Court: The first objection taken by counsel, in argument, to the decree below, is, “the notice, if published as recited in the trustee’s deed, was insufficient; the trustee’s deed was consequently void for defect of power, and 'this appears in the deed itself. ” The proof of the notice published, as recited in the decree, was, that “on the 9th day of November, A. D. 1878, the trustee caused due notice to be published in the ‘ Chicago Legal News,’ a newspaper published in the said city of Chicago, that said premises hereinafter described would, on the 10th day of December, A. D. 1878, at the hour of 10 o’clock in the forenoon of said day, be sold at public auction, at the south-east corner of Adams and La Salle streets, in said city of Chicago, in said county of Cook, to the highest bidder, for cash, by virtue of the power and authority in him vested by said trust deed, which said notice was duly published once a week for four successive weeks, to-wit: four times in the said ‘Chicago Legal News,’ and that the date of the first paper containing the same was the 9th day of November, A. D. 1878, and of the last the 30th day of November, A. D. 1878,” etc. The power in the deed of trust required that the premises should be sold at public auction, for the highest and best price, etc., “thirty days’ previous notice of such sale having been given, by publication, once in each week for four successive weeks, in the ‘Chicago Legal News,’ or in any newspaper at that time published in Chicago. ” The first ground of objection discussed is, under this power no latitude is given the trustee,—the notice must be published precisely thirty days before the day of sale. This is not tenable. The power does not require that the notice shall be published, for the first time, thirty days previous to the day of sale, but simply that there shall be thirty days’ previous notice, etc. It may be conceded that the publication of a notice a great length of time before the day of sale, although strictly within the letter would not be within the spirit of the power, and would be no notice in fact; but that case is not now before us. The sale here was on the 10th of December, and the last publication on the 30th of November,—a reasonable time enough for all purposes of notice. In Tooke et ux. v. Newman et al. 75 Ill. 219, to a like objection there urged, it was replied: “The claim that the notice is insufficient is extremely technical, and without force or merit. The deed of trust required that there should be published a notice of sale for five consecutive days, the last of which should be ten days before that fixed for the sale. The deed does not" state the last insertion of the notice shall be ten days, and no more, before the sale. Had there been but nine days, then it would have been insufficient, because the longer the notice, within reasonable limits, the greater the number of persons who will see it, and the larger the chances for an enhanced price that may be had for the property. Hence the law gives to the debtor the full benefit of the stipulated notice, and prevents the creditor from abridging the time, and thus injuring his debtor. But a longer notice than is required, by a few days, can work no injury, hut is calculated to operate to his benefit. ” In principle that case and the present, in respect of the point under consideration, are entirely analogous. In Beal v. Blair et al. 33 Iowa, 318, where it was provided sale might be made upon giving thirty days’ notice thereof, it was held the time of sale was not limited thereby to the day immediately succeeding the expiration of the thirty days. We have carefully examined the eases referred to by counsel for appellant, and we deem them inapplicable. The dictum in Armstrong v. Scott, 3 G. Greene, 433, relied upon, was subsequently overruled by the same court in Lefler v. Armstrong, 4 Iowa, 487. The next ground of objection urged is this: It is provided by section 14, chap. 95, Rev. Stat. 1874, that “in all sales of real estate under a mortgage, or trust deed in the nature of a mortgage, executed after the taking" effect of this act, which may be made pursuant to a power of sale, at least thirty days’ previous notice of such intended sale shall be given, whether so specified in the power of sale or not. * * * The notice shall be given by publication, once in each week for four successive weeks, in some newspaper or other paper authorized by law to publish legal notices, published in the county or counties where the premises are situated, or if no paper is published in such county, the nearest newspaper published in this State; but in no case shall a notice be given for a shorter time than is required by the mortgage or deed of trust, ” and the contention is, this requires that the last publication shall be at least thirty days before the sale. But this, in our opinion, is neither in accordance with the letter nor the spirit of the statute. “At least thirty days’ previous notice shall be given, ” says the statute, and this is fully answered by one publication—the first—at least thirty days before the sale. This ends the direction as to when the notice shall be published, and then follows the direction how long it shall be published, namely, “once in each week, for four successive weeks.” Thus there is required a continuous publication, as nearly as is possible by weekly newspapers, for thirty days prior to the sale. Had it been designed the last publication must be at least thirty days prior to the sale, we must presume it would have been so enacted, and as it was not so enacted it can not be held to be the law. Fry v. Bidwell, 74 Ill. 381. ■ The next point urged is, that there was in fact no publication as recited in the decree. It is provided by sec. 1, chap. 100, Bev. Stat. 1874, “that when any notice shall be required by law, or the order of the court, or any contract, to be published in any newspaper, and no other mode of proving the same is provided, the certificate of the publisher, * * * with a written or printed copy of the notice annexed, stating the number of times which the same shall have been published, and the dates of the first and last papers containing the same, shall be sufficient evidence of the publication therein set forth. ” Accompanying and annexed to the -notice here, is a certificate of the publisher of the “Chicago Legal News” that the notice, “of which the annexed printed slip is a true copy; was published for four successive weeks, to-wit, four times in the ‘Chicago Legal News,’ a weekly secular newspaper, published every Saturday in the city of Chicago, county of Cook, and State of Illinois, * * * and that the date of the first paper containing the same was the 9th day of November, A. D. 1878, and that the date of the last, paper containing the same was the 30th day of November, 1878.” This we regard as a full compliance with the section of the statute quoted, and a complete protection to third parties acquiring rights under the sale; but since, as to one lot, the cestuis que trust under the deed of trust are claimants, it is, perhaps, necessary to go farther, and inquire whether appellant has successfully impeached this certificate. Appellant claims to have impeached the certificate by proof that the pages on which the notice was published were not, in fact, a part of the “Legal News,” though folded with and circulated with it. The substance of the proof is, a large number of advertisements are published in the “Legal News, ” and upon some of the pages on which this notice was published there was nothing but advertisements. These pages were, as the others, however, headed “Chicago Legal News;” they were of the same size as the other pages, and folded and sent out to subscribers with and as a part of the “Legal News.” The pages containing law.or miscellaneous reading are numbered consecutively, both at the top and the bottom of the page, but the pages containing nothing but advertisements are numbered consecutively with the other pages at the bottom of the page only, and in this respect, and in the fact that the entire page is filled with advertisements, do these pages differ from the others. We can not think the omission of the paging at the top a circumstance of any importance. It in nowise affects the question of notice, and is a mere matter-of convenience in making reference, which is as effectually promoted by the paging at the bottom. The law does not require, nor does the deed of trust require, the notice shall be published on a page containing law reading or miscellaneous reading. The pages containing legal notices seem to us to be just as much a part of the “Legal News” as any other of the pages of that publication. We do not think the certificate is at all impaired by the evidence. Another objection urged by counsel for appellant against the decree below is, there was “no auction, no bidding. ” This is not sustained by the evidence. Freer, the trustee, testifies that he offered the property for sale at public auction; that one of the lots was first bid off by a gentleman whose name he does not recall, and the other was then bid off by Murdoch; that the gentleman bidding off the first lot claimed to have been laboring under a mistake, and in consequence refused to take the lot. He then says: “It is my impression * * * that I went on then and re-offered the first piece of property.” And he subsequently states that “Murdoch became the purchaser of it also.” We do not think Freer’s evidence on this point successfully contradicted. The objection that no money was paid by Murdoch at the time of the sale, is untenable. It was sufficient that the amount bid was credited upon the note. Jacobs v. Turpin, 83 Ill. 424. Steumbaugh v. Hallam, 48 Ill. 305, Sutphen v. Cushman et al. 35 id. 186, and Ennor v. Thompson, 46 id. 214, referred to by counsel for appellant, are not in point. In those cases the notes were held by the payees as subsisting evidence of indebtedness, while here they are retained simply as muniments of a title derived by virtue of a sale resulting in their satisfaction. Doubtless, being satisfied, the maker is entitled to their possession. (In re Costar, 2 Johns. Ch. 503.) But their possession by the payees, under the circumstances here proved, does not rebut the idea that there was a sale of the property under the power in the deed of trust. But counsel insist, as a final and conclusive objection to the decree below, that the equities are such as to preserve the right of redemption, notwithstanding the sale, and, under this head, they contend there was an agreement between appellant and Murdoch, Reid & Fischer, whereby they agreed she should be allowed to redeem, notwithstanding the sale. Appellant testified: “On learning that the property *'* * had been advertised for sale, for foreclosure, Ool. Roberts went with me immediately to see Messrs. Reid, Murdoch & Fischer. We saw Mr. Murdoch and one other gentleman, I don’t know whether it was Mr. Reid or Mr. Fischer, and asked them to give me a little more time, as it was the first I had heard of it, and they told me if I would bring them the amount of the interest then due they would withdraw, and I could make a new loan at a lower rate of interest; but I told them the time was so short, it was too short then for me to raise the money. It was then the 7th or 8th, and the sale was the 10th of December. They told me that the sale then would have to go on, but that I could redeem the property at any time. Mr. Murdoch stated to me that the sale would have to go on, but that I could redeem the property. * * * After he stated to me that I could redeem the property at any time, I left then, feeling very easy, and never thought any more about it for some time. ” She shows that at this time she had with her her attorney, R. Biddle Roberts, who heard the whole conversation, and his recollection fails to sustain her. Among other things he testified: “They (i. e., Murdoch, Reid & Fischer,) stated that they only wanted to get back their loan. I think that Mr. Reid said that the money was not theirs; that they were only acting for other parties, and that they must get back the loan. Mrs. Taylor was unable to give them a distinct assurance as to when she would make a payment, and we parted, as I recollect, they agreeing to postpone the sale if certain payments were made, and stating that all they wanted was their money.” On cross-examination he says this payment was to be made at some time prior to the time the sale was to take place. The husband of appellant corroborates her, in his testimony, to some extent. He testifies, that after the sale was made Murdoch told him that he (Murdoch) would be very glad to take the money at any time; that he was loaning money; wanted his money and interest, and not property. But this is emphatically denied by Murdoch, and he also denies that any agreement was made whereby appellant should be allowed to redeem after the sale. His testimony is fully corroborated by that of Reid. They admit they agreed to postpone the sale if the interest due should he paid before the day fixed for the sale, but deny that any right of redemption after the sale was recognized. We can not say the court below erred in finding thejalleged agreement to allow redemption after the sale not proved by the evidence. If such an agreement had been made, it would have been strange indeed if it had no limitations, and yet appellant’s testimony fixes no time within which redemption was to have been effected. It does not, from her testimony, appear that she undertook to redeem at all. She was simply allowed the privilege to do so, indefinitely. Such an agreement, if made, would have been void for want of mutuality. It is most singular that business men should enter into such an agreement. Why have a sale, if no title could pass ? Some minor objections are urged, which we deem untenable, and not of sufficient importance to specifically notice. On the whole, we are unable to say there is such error in the record as would warrant us in reversing the decree below. It will, therefore, be affirmed. Decree affirmed.