Donald v. Commercial Bank

Sykes, P. J., delivered the opinion of the court. The complainants in their bill seek to have declared invalid a sale of certain lands under a deed of trust. Among other provisions in the deed of, trust is one which states that the. trustee may sell “after giving notice for three consecutive weeks in some newspaper published in said county.” The notice was published in the newspaper-on January 12th, 19th, and 26th, and the sale was made on February 2d. A demurrer Was sustained to the bill; the court in effect thereby holding that proper notice by publication was given and a valid sale held. [583] Section 2772, Code of 1906, section 2276, Hemingway’s Code, provides: “Sale of said lands shall be advertised for three consecutive weeks preceding such sale, in a newspaper published in the county.” It is the contention of the appellants (complainants in the lowTer court) that there was not an advertisement published in the paper for three'consecutive weeks preceding the sale; that three weeks means three full weeks of twenty-one days, and that in making this calculation you exclude from the count both the first day of the advertisement and the day of the sale. Counting these two days there would be twenty-two days including. first day of advertisement and day of sale. Excluding one and counting the other, there are twenty-one days, or three weeks. Appellants contend that section 1607, Code of 1906, section 1374, Hemingway’s Code, which relates to a publication for three weeks in a newspaper, which portion relied upon reads as follows: “But there must be three weeks between the first publication and the day . . . for which the publication shall be made” — that this necessarily means that the first day of publication and the day of sale must be excluded and that twenty-one days must come in between these two days. The appellees contend that under the common law and also under section 1606, Code of 1906, section 1373, Hemingway’s Code, that in computations of this character, .whether it be of weeks or days, one day is counted and the other excluded. Section 1606, expressly provides that “the day of serving the process or of giving the notice shall be excluded and the day of appearance included.” The common-law rule with reference to the computing of time by this court before the passage of the above section was to exclude the first day and include that fixed for the performance of the act. “The proper mode of computing time, where notice for a specific time is to be given before an act can be done, is to exclude the day on which the notice was given, and include the day fixed for [584] the performance of the act.” Hall v. Cassidy, 25 Miss. 48. Again: “The statute . . . requires publication of notice to nonresident defendants in chancery to be made once ‘a week for one month.’ This means that the publication shall be made for a calendar month, which period must intervene between the date of the first publication and the date of the last, excluding one and including the other of these dates.” Mitchell v. Woodson, 37 Miss. 567. To the. same effect is the case of Grocery Co. v. Tompkins, 111 Miss. 592, 71 So. 866. In the case of Planters’ Mercantile Co. v. Braxton, 120 Miss. 470, 82 So. 323, this court held a sale void because nine days elapsed between the last publication and the day of sale. Section 2772, Code of 1906, supra expressly provides that a sale may be made after giving a three weeks publication. The sale in this case took place exactly one week after the last publication. The effect of this decision is that the sale must take place within a week after the last publication, otherwise the advertisement does not precede the sale. It is'there said: “If a longer period of time than one week may elapse from the date of.the last advertisement and the day of salé, it logically follows that several weeks or several months might elapse.” The correctness of the Braxton decision was earnestly challenged in the Maris Case, 124 Miss. 742, 87 So. 13, and the decision adhered to. The writer of this opinion, however, did not agree with the majority of the court in that opinion. If the contention of the appellants in this case be upheld, then there could not be a sale on the seventh day because there had not been three weeks between the first publication and the day of sale. Under the Braxton and Maris Cases, supra, there could not be a sale under this advertisement after the seventh day, because a week had expired between the last publication and the day of sale, therefore, though the statute only prescribes for an advertisement of three weeks in a newspaper, it would necessarily follow that there could bé no sale on a three [585] weeks advertisement. In computing the time that must, elapse between the last advertisement and the day of sale this court in these two opinions has dealt with days and not with weeks. Whether the time to be counted be weeks or days, both under the common-law rule and under our statutes, the first day is to be excluded and the last included. Section 1607, Code of 1906, supra, prescribing a publication for three weeks, was not meant to and does not interfere with this method of inclusion and exclusion. The learned chancellor so held, and the decree is affirmed. Affirmed.