Pratt v. Tinkcom

Young, J. The 60 to 75 copies of the newspaper delivered in Mankato by carrier, on Friday, January 24, were undoubtedly published on that day. The same is true of the 575 copies deposited in the post-office on that day, 75 for delivery to subscribers in the citjr, and 500 to be carried to subscribers elsewhere. The publication contemplated by the statute, (Gen. Stat., ch. 81, § 5,) is the original issue of the paper from the hands of the person or company of persons by whom or for whom it is printed, and who is commonly styled the publisher or proprietor. 'When these papers were deposited in the post-office, they passed from the hands and control of the publisher, and nothing was left to be done by him to complete the publication. They were therefore published , within the meaning of the statute, when thus deposited, there being nothing in this case to rebut the presumption that they were duly delivered, in the usual course of mail, to the subscribers to whom they were addressed. See Rex v. Burdett, 4 B. & A. 95 ; Hinchman v. Barns, 21 Mich. 556. Of the whole edition, from 765 to 780 copies, all but 13d were issued on the 24th, the remaining 130 being delivered by carrier to subscribers on the 25th. This is not a case where a mortgagee, in the execution of a valid and operative power of sale, has published a notice on [145] the day before the paper in which it appears purports to be issued, and has thereby given a longer notice than would be indicated by the date of the paper. At the time of the publication of the papers issued on Friday, the 24th, no default had occurred in the condition of the mortgage ; for the mortgagor was entitled to the whole of the business hours of that day in which to make payment. Daly v. Proetz, 20 Minn. 411. All the copies of the paper issued on the 24th, were, therefore, published before the power of sale became operative, and before the mortgagee was authorized to give the statutory notice of foreclosure. Gen. Stat., ch. 81, § 2. The attempted publication of the notice in the copies issued on the 24th was unauthorized and void, and the case stands as if the notice had been wholly omitted from those copies of the paper; for a publication not authorized by law is in law no publication at all. The remaining 130 copies of the issue bearing date January 25, being about one-sixth of the whole edition, were distributed by carrier among subscribers in Mankato on that day, after the power of sale had become operative, and the mortgagee was entitled to give notice of foreclosure and sale ; but the publication of the notice in those 130 copies was not a sufficient publication. Without undertaking to lay down a general rule, applicable to all cases where a notice has failed to appear in every copy of the regular issue of a newspaper, we think it entirely clear that a notice appearing in only one-sixth of the whole number of copies oí an edition regularly printed and published, is not published in such newspaper within the meaning of the statute. There was, therefore, no publication of any notice in the issue bearing date January 25, and the notice of sale was first published in the next following issue of the paper, that bearing date February 1. The notice published for the first time in that issue, and continued weekly, was clearly insufficient to aiithorizo a sale on March 10, the day named therein as the time of sale. The statute, (Gen. Stat., ch. 81, § 5,) requires that the notice “ shall be given by pub [146] lisliing the same for six successive weeks, at least once in each week, in a newspaper printed and published, etc.,” and a notice published for the first time in the edition of Februai’y 1 could not possibly be published weekly for six successive weeks before March 10. And this defect in the proceedings was not cured by the postponement of the sale, on March 7, to March 17, although the time between the first publication and the sale was thereby enlarged to a period of more than six weeks. Neither the notice fixing March 10, nor that fixing March 17 as the day of sale, was published for six successive weeks, as required by statute. At the time of the tender made by the plaintiffs on February 3, no valid proceedings in foreclosure had been instituted, and no costs or expenses had accrued which it was incumbent on the plaintiffs to pay. Their tender of the principal sum and interest then due upon the mortgage ivas therefore sufficient; and this tender having been kept good, and the amount thereof paid into court, the plaintiffs, at the time of bringing this action, had entitled themselves to the relief demanded in the complaint. The subsequent sale on March 17, and all further proceedings in the foreclosure, were wholly void, and created a cloud on plaintiffs’ title, which should be removed. The conclusions drawn by the district court from the facts found, and the judgment dismissing the action, were erroneous. The judgment should therefore be reversed, and the case remanded to the district court, with directions to enter judgment for the plaintiffs, in accordance with the prayer of the supplemental complaint.