Lake v. Castleman

Stevens, J., delivered the opinion of the court. This appeal presents one narrow technical point. Appellee, Mrs. Castleman, was a purchaser of the real estate at a foreclosure sale made by the trustee under'two certain deeds of trust; one sale being made on July 31, 1914, and the other November 2, 1914. It is appellants’ contention that the trustee did not advertise • for the time required by the provisions of the deeds of trust and section 2772, Code of 1906. The sales were upheld by the chancellor, and his decree made perpetual an injunction at the suit of appellee, seeking to restrain a sale under a junior lien, and confirmed appellee’s title. The validity of the two sales under the deeds of trust, through the foreclosure of which appellee became purchaser, is involved. Under one of these foreclosure proceedings, advertisement of the sale notice was carried in the Greenville Democrat, a daily newspaper, and the notice was published October 8, 15, 22, and 29, 1914, and the salé was made November 2d thereafter. In the other proceeding the notice was published in the same newspaper July 7, 14, 21, and 28, 1914, and the sale was made July 31, 1914, the time fixed in the notice. Under the first notice there was an interval from Thursday, October 29, the date of the last publication, until Monday, November 2, 1914, the day fixed for the sale. In the other proceeding there was an interval .of two days between the date of the last publication and the day of sale. It is contended that, under section 2772 of the Code, “sale of said lands shall be advertised for three consecutive weeks preceding such sale” refers to the three weeks immediately preceding, and that, if the publication is made in a daily newspaper, the notice should be published up to the very day of sale, and because there were issues of the daily paper during the several days’ interval between the date of the last publication and the day of sale, when no notice appeared in the daily paper, there is a fatal defect in the title [186] upon which appellee relies. The argument is made that it was the duty of the trustee to keep the advertisement in the issue of the paper on the morning of the day of the sale, or certainly on the day next preceding. It seems to be conceded by counsel for appellants that, when the publication is made in a weekly newspaper, it is not always possible to make the publication on the day immediately preceding the sale, but that in such case a publication in the last regular issue of the paper preceding the day of sale is sufficient. In their contention that there was a defective or insufficient advertisement of the two trustee’s sales, appellants are wrong. Section 1607, Code of 1906, expressly provides that: “When publication shall be required to be made in some newspaper for three weeks, it shall be sufficient to publish once each week for three weeks, even though there be not three weeks between the first and last publication; but there must be three weeks between the first publication and the day for the appearance of the party or other thing for which the publication shall be made.” The trustee complied with this section, as also the provisions of 2772. It follows that the sales made by J. M. Cashin, substituted trustee, are valid, and the decree appealed from must be affirmed. See Weston v. Hancock, 98 Miss. 800, 54 So. 397. It will be noted that more than one week did not elapse between the date of the last publication and the day of sale. This fact points the difference between the case at bar and that of McMahan v. American Building & Loan, etc., Ass’n, 75 Miss. 965, 23 So. 431. The construction contended for by appellants would upset most of the foreclosures' "heretofore had in Mississippi, and impose a harder rule for advertising a sale in a daily newspaper than for an advertisement in a weekly newspaper. The statute makes simple that which might otherwise be involved and obscured by legal refinement. Affirmed-