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Olcott v. Robinson

21 N.Y. 150 Court N.Y. English

Decision Majority — *167 Davies, J. · Dissent — Comstock, C. J.

Contents

Majority

p. 166
Olcott v. Robinson.

Headnote

Computation of Time.
The statute in reference to the notice of the sale of real estate on execution, is complied with, by a publication in six successive numbers of a weekly newspaper, though the first publication be less than six weeks prior to the sale.
Olcott v. Eobinson, 20 Barb. 148 , reversed.
* Appeal from the Supreme Court, at general term, in the fourth district; which set aside a verdict for the plaintiff, given subject to the opinion of the court, and entered judgment for the defendant. (Reported below, 20 Barb. 148 .)
This was an ejectment to recover possession of the north half of Yalcour’s Island, in Lake Champlain, in the county of Clinton. The plaintiff claimed by virtue of a sheriff’s deed for the premises, which had been sold under an execution issued upon a judgment against Peter Comstock; and the sole question was, whether due publication had been made of the sheriff’s notice of the time and place of sale. The sale ivas made on Wednesday, the 8th May 1850; the notices thereof were duly posted in pursuance of the statute; and were published in a weekly newspaper, for six successive weeks; but the first publication thereof was on Saturday, the 30 th March, which was less than six full weeks prior to the sale.
The plaintiff had a verdict, .subject to the opinion of the court at general term, where judgment was entered for the defendant, on the ground that the notice of sale was not sufficient, and the plaintiff appealed to this court.
Stoiv, for the appellant.
Paige, for the respondent.

The Revised Statutes require (2 R. S. 368, § 36) that the time and place of holding any sale of real estate, pursuant to any execution, shall he publicly advertised previously for six weeks successively, as follows: 1. A written or printed-notice thereof shall be fastened up in three public places in the town where such real estate shall be sold: 2. A copy of such notice shall be printed, once in each week, in a newspapef *of such county, if there be one. It is conceded, that the formalities required by the first subdivision of this section have been complied with, and that the time and place of the sale, so far as prescribed by it, had been advertised for six weeks successively, previously to the day of sale. The notice was fastened up on Tuesday, the 26th of M irch, and continued so fastened up, until the day of sale, Wednesday, May 8th. It was, therefore, so far as the notice fastened up was concerned, publicly advetised for six weeks successively previously to the sale.

The second subdivision, it will be observed, requires a publication in the newspaper, of a copy of the notice posted up; clearly, therefore, implying that the posting or fastening up is to precede the publication. It is a copy of the notice fastened up, which is to be printed once in each week, in a newspaper of the county, for six weeks previously to the sale. There is no doubt, that all the formalities of the first subdivision were strictly complied with; and the notice thus posted up was the original notice of sale; it is thus expressly declared by statute. .It was put up at the right time, and continued up for the right time; no law required it to be put up sooner. A copy of the notice thus fastened up is to be printed in a newspaper, for six Aveeks, once in each week. Can it, with truth, be said, that the statute requires the copy to be printed, before the original is in existance? It is a perversion of terms to say so. The original is first to be fastened up, and to be put up for the time prior to the sale, required by statute, then the copy is to be printed

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in the newspaper. It is not correct to say, that the copy of a notice, the original of which had no existance, until Tuesday, March 26th, should have been published in the newspaper of Saturday, March 23d. The copy could not be prepared for publication, until the original had existence, and then it was printed in the first publication thereafter, and printed once in each week, for the six weeks successively intervening between the fastening up of the original notice and the day of sale. It seems to me, that this is not only a strict compliance with the spirit of the provisions of the statute, but with its letter also.

The defendant relies on the authority of an anonymous case *( 1 Wend. 90 ). This seems to have been submitted to the judges of the supreme court by a commissioner, for their advice, and decided without argument. The provision of the Revised Laws, to which the case referred, was. that an 'insolvent seeking a discharge should cause an advertisement to be published for six weeks successively, specifying the time and place for his creditors to show cause why an assignment should not be made by the insolvent, and he bo discharged. It was stated to the judges of the supreme court in that case, that it did not appear that full six weeks’ notice to the creditors had been given. The affidavit of publication set forth that the advertisement or notice had been regularly published in the newspaper directed, once in each week, for six weeks successively, commencing on a certain day. Woodworth, J., said, the proof of publication was undoubtedly defective; the affidavit might literally be true, and yet only thirty days’ notice be given; the statute requires the advertisement or notice to the creditors to show cause, to be published for six weeks successively; that is, during forty-two days.

The authority of this case has been greatly impaired by the decision of the supreme court of the seventh district in Sheldon v. Wright ( 7 Barb. 39 ). In that case, the pro

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vision of the statute under consideration, was that authorizing a surrogate to make an order, directing all persons interested in the estate of a deceased person to show cause, on a day to be named in such order, why so much of the real estate whereof such testator or intestate died seised, should not be sold, as would be sufficient to pay his debts, and the statute further provided, that such order should immediately thereafter be published for four weeks successively, in two or more public newspapers printed in this state. (1 Rev. Laws, 450, § 23). The order in that case was made on the 6th of September 1826, requiring the cause to be shown before the surrogate on the 19th of October following. The order was published in the “Free Press,” a newspaper printed in Auburn, Cayuga county, once in each week, for four weeks successively, commencing on the 20th day of September 1826, and in the “ Cayuga Patriot,” printed in the same place, once in *each week, for the same number of weeks, commencing on the 27th of September 1826. Welles, J., in delivering the opinion of the court, says—“ I have no doubt whatever, that it is essential, in order to give the surrogate jurisdiction of the persons of the heirs, that this provision of the statute should be strictly complied with; it is the only process to bring them into court, and without it, they are without their day in court. And I think that notice for the full time required by the statute is equally indispensable ; that short notice would be as no notice. "x" * * It is claimed, that the notice, so far as one of the papers was concerned (the Cayuga Patriot), ivas not published four weeks: that the first publication, which was on the 27th day of September, was less than four weeks before the 19th day of October, when the parties were required to show cause, <fcc.; this, as a matter of fact, will be seen, upon a computation of time, to be true. But I do not understand the act to require the first of the four successive publications to be four weeks before the day of
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showing cause; the requirement is satisfied by four successive weekly publications before the day.” And such the learned justice says has been the practical construction of the provision of the insolvent laws, requiring notice to creditors to be published, in one class of cases, six weeks, and in another, ten weeks.

The case was brought up on an appeal to this court, and the judgment below affirmed ( 5 N. Y. 497 ). Foot, J., in delivering the opinion of this court, which was concurred in by five other judges, says, that he has no doubt that the decision of the surrogate was correct, in respect to the time and manner of publishing the order to show cause; it was in accordance with the language of the statute, and there does not appear to be any reason for a different construction. And he refers to the decision of the supreme court of Massachusetts, in the case of Bachelor v. Bachelor ( 1 Mass. 255 ), as directly in point, and says, it appears to have been better considered, and to rest on sounder reason, than the adversary opinion of our own court, in an anonymous case involving the same question. ( 1 Wend. 90 , supra) If the judgment of this court had turned upon this point, in the case of Sheldon *v. Wright, it would have been an authoritative decision of the case now under consideration.

The case of Bachelor v. Bachelor (supra) would seem to be a case nearly in point. The order directed the notice to be published in a newspaper for three weeks successively ; the notice was inserted in a paper published twice weekly; it was first published in the paper issued Saturday, June 30th; secondly, Saturday July 7th, and thirdly, Wednesday, July lltli. The court held that the order had been substantially complied with; they said, it was usual, however, to publish with an interval of a week, but that it was not strictly necessary—the publication has been made in three successive weeks, which is sufficient.

It would seem, therefore, that the weight of authority

Dissent

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preponderates decidedly in favor of holding that the publication of the notice in the present case was sufficient. The position contended for by the learned counsel for the defendant in this case would lead to this result, that the posted notice should have notified the sale for May 13th, thus requiring a notice by fastening up to be a notice of forty-seven days, and the copy thereof printed in the paper on the 30tli March, 6th, 13th, 20th and 27th of April, and the 4th and 11th of May, a published notice in the newspaper of forty-four days.

I do not think the statute is to be "construed in a manner to lead to such results, but that its plain and literal import is to be followed. The notice is to be fastened up for six successive weeks previously to the sale,as was done in this case. A copy of the notice thus put up was to be published once a week, for six successive weeks, after such notice by posting had been given; this has also been done. It "follows, that the judgment of the general term should be reversed, and that of the special term be affirmed.[1]

(Dissenting.)—It is a condition precedent of the sheriff’s power to sell lands on execution,that the sale *“ shall be' publicly advertised previously, for six weeks successively.” This is the language of the statute (2 R. S. 378, 379, § 34), and its plain meaning is, that six whole weeks must elapse between

1 Justices Wright, Selden, Clerke and Welles concurred in reversing the judgment of the general term. The doctrine of this case was re-of-firmed in Wood v Morehouse, 45 N. Y. 368 ; and was followed in Wood v. Terry, 4 Lans. 80 ; Chamberlain v. Dempsey, 22 How. Pr. 356 ; and Steinle v. Bell, 12 Abb. Pr. (N. S.) 171. To the same effect is Pearson v. Bradley, 48 Ill. 250 ; and also Williams v. Moore, 1 T. & H. Pr. § 1250 n. On the contrary, the dissenting opinion is sustained by the cases of Early v. Homans, 16 How. 610 , in the supreme court of the United States; Parsons v. Lanning, 12 C. E. Green 70; North Whitehall Township, 47 Penn. St. 156 ; Francis v. Norris, 2 Miles 150; Wallace’s Estate, 2 Pitts. 145; Evans v. Sidwell, 9 Lancaster Bar 113; and Erie Saving Fund and Building Association v. Thompson, 34 Leg. Int. 456 .

p. 172
the commencement of the advertisement and the time of sale. There is no more reason for saying that five and a half weeks, than for saying that one or two weeks, will answer the purpose; if we abridge the time for a single day, we may do it for as many days as we please, and the statute becomes a dead letter.

This public advertisement must be made, by posting the notice of sale in the manner specified in the statute, and by causing a copy to be printed, “ once in each week,” in a newspaper of the county in which the lands are situated. Two things, therefore, are required to make the advertisement complete, one, the posting of the notice, the other, its insertion in the newspaper; and the publication in both its branches must be for six weeks previously to the sale. The “ public advertisementconsists of both these things, and as that must be for six full weeks, so a shorter time will not answer for either one of these performances. There is no publication at all, unless the notice is both posted, and printed in a newspaper; and if we say, that the time either of posting or printing may be shortened, we hold, in substance, that an advertisement for less than.six weeks is good; this we cannot do 'without abrogating the statute.

It is urged, that according to this construction, seven newspaper insertions will always be required before the sale. If that consequence were to follow, the opposite construction would by no means be justified; the number of insertions is not specified in the statute. The advertisement must be for six previous weeks, in both the modes prescribed, and it must be in the newspaper, “once in each ” of those weeks. If the full period of six weeks, which must elapse between the first insertion and the sale, requires the notice to appear seven times in the paper, in order to have one publication in each of the six weeks, then it must be inserted so many times. The fundamental requisition is, that the sale must be advertised for a full period of six weeks. But I think the consequence

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mentioned does not follow. *If an advertisement is commenced on the 1st of April, by posting, and inserting in a newspaper, on tiiat day, the sale can take place on the 13 th of May, the intervening period being six weeks or forty-two days. Now, the six weekly publications in the paper will be the 1st, 8th, 15th, 22d and 29th days of April, and the 6th of May. As the sale will take place on the 13th of May, the last publication will, therefore, be at the commencement of the week which immediately precedes it. This will be an undoubted compliance with the law; another insertion, on the very day of the sale, cannot be necessary; the sale may lawfully take place in the morning, while the newspaper may be issued in the evening. It follows, that in all cases, six or more insertions will be required, according as the sale shall or shall not be appointed to take place precisely at the close of six weeks from the first publication.

The construction which I have indicated is the one given to similar statutes by the former and the existing supreme courts of this state. ( 1 Wend. 90 ; 16 Barb. 347 .) We are referred, however, to the case of Sheldon v. Wright, in this court ( 5 N. Y. 497 ), as a controlling authority the other way; but an examination of that case will show that no such point was decided. The general question involved was, whether the order of a surrogate directing the sale of an intestate’s real estate was valid. One of the objections to be overcome, was the alleged insufficiency of the publication of an order to show cause against the sale; but the surrogate had expressly adjudged that the publication was sufficient, and this court simply held, so far as we can judge from the opinion given, that this decision could not be inquired into collaterally. The observations of Judge Foot, favorable to such a construction of the statute now in question, as the plaintiff contends for, were followed by a disclaimer of any such ground of decision.

On the ground, therefore, that the notice of the sheriff’s

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sale under which the plaintiff claims title, was not advertised for six weeks, as the statute requires, I am of opinion, that the order of the supreme court granting a new trial must be affirmed, and that the defendant must have final judgment '"'according- to the stipulation entered into on bringing the present appeal.

Denio and Bacon, JJ., also dissented.

Judgment reversed, and judgment for the plaintiff.

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