Meredith v. Chancey

Worden, J. — Action by the appellee, against the appellant, to recover possession of a tract of land and mesne profits. Issue; trial by the court; finding and judgment for the plaintiff, a motion for a new trial, for causes assigned, made by the defendant, having been overruled. The appellant has presented several questions, but we think it necessary to consider but one of them, as that is decisive of the case. The facts are, in brief, that the plaintiff had a judgment for the foreclosure of a mortgage upon the land in controversy against the defendant, and, upon an order of sale issued upon the judgment, the plaintiff became the [467] purchaser of the property and received the sheriff’s deed therefor, the property not having been redeemed. The -question presented relates to the validity of the sheriff’s .sale.' The property was sold on the 1st day of January, 1875. Notice of the sale was published in a newspaper published in the county, on the 12th, 19th and 26th days of December, 1874; and the question arises, whether this publication was sufficient in point of time. The statute provides, that “ The time and place of making sale of real estate, on execution, shall be publicly advertised by the sheriff, for at least twenty days successively next, before the day of sale, by posting up written or printed notices thereof, in three public places in the township in which the real estate is situated, and a like advertisement at the door of the court-house of the county; and also by advertising the same, for three weeks successively, in a newspaper printed nearest to the real, estate, if any such newspaper be printed within the jurisdiction of the sheriff,” etc. 2 R. S. 1876, p. 217, sec. 467. Thus two modes of giving notice of such sales are required: First, by posting up written or printed notices, as required, for at least twenty days successively next before the day of sale; and, second, by advertising, the sale for three weeks successively in a newspaper, where there is •one-within the jurisdiction of the sheriff. We do not think the last advertisement need to have been published three weeks, or twenty-one days, before the sale. See Rhoades v. Delaney, 50 Ind. 468. But we are of opinion, that the Legislature intended that the first advertisement should be made full three weeks, or twenty-one days, before the day of sale. To be sure, the written or printed notices need be posted up only twenty days next before the day of sale, but the advertisement is required to be published in the newspaper “for three weeks successively,” and this means three weeks successively next before the day of sale. Three weeks are twenty-one days, and a publication by advertisement in a [468] newspaper for a period of less than twenty-one days is not a compliance with the statute. Cases have been cited tending to show, that, where the law requires a publication to be made three weeks in a newspaper before a thing is to be done, it will be sufficient if the publication is made in three weekly issues of the paper before the thing is to be done, although the first publication is not made three weeks before. Frothingham v. March, 1 Mass. 247; Bachelor v. Bachelor, 1 Mass. 256; Olcott v. Robinson, 21 N. Y. 150; Pearson v. Bradley, 48 Ill. 250. But we are not inclined to follow these decisions, as they are not in harmony with the previous rulings of this court upon similar questions. Thus, in Shipley v. Mitchell, 7 Blackf. 472, it was held, under a statute which required notice to bring a party into court to be published “ for three successive weeks,” at least sixty days before the next term of the court, that the first publication must be made full three weeks before the commencement of the sixty daysp and this, we believe, has ever since, in this State, been-regarded as the settled construction of similar statutes. If a publication in three successive weekly issues of a paper were to be regarded as sufficient, then a sale might be made on the 15th day after the first publication, as if the publication were made on the 1st, 8th and 15th day® of the month of a sale to be had on the 16th. But this, in our opinion, would not be a compliance with the statute. As before intimated, we are of opinion that the newspaper publication of such sale must be made full three weeks, or twenty-one days, before the day of sale. In this case, as has been stated, the first publication was made on the 12th of December. Including the 12th, and excluding the 1st of January, the day of sale, or vice versa,. the notice was published only twenty days; and this, was insufficient That either the day of the first publication, or the day of sale, should be excluded in the computation of time, we think is abundantly clear. The plaintiff, having been the plaintiff in the execu [469] tion or order of sale, was chargeable with notice of the irregularity, and the sale, as to him, was void, and no title vested in him. Harrison v. Doe, 2 Blackf. 1; Raub v. Heath, 8 Blackf. 575; Keen v. Preston, 24 Ind. 395. Objections to a sheriff’s sale may he made in an action to recover the land. Sherry v. Nick of the Woods, 1 Ind. 575. The counsel for the appellee have cited the case of Paine v. Mooreland, 15 Ohio, 435, hut, upon an examination of the case, we do not think it in point here. The judgment below is reversed, with costs, and the •cause remanded for a new trial.