There is hut the one question presented and insisted on, — whether or not the three weeks’ notice required to he given for the sale of the property in question under the power in the mortgage, was given in conformity to the.terms of mortgage.
The mortgage required that notice of sale under the power should he given, “by advertising the same in any newspaper published in Etowah county, at least three times before the day of sale.” As to this notice it further provided: “It agreed that any irregularity in giving ‘the notice, or of making the sale, shall not in any manner affect the sale.”
The deed executed to the purchaser contained a recital of the compliance with the terms of. the mortgage as to the notice of sale on foreclosure. These recitals in the deed were prima facie evidence of the facts stated therein as against the mortgagor and his privies (Naugher v. Sparks, 110 Ala. 572) ; and the complainants settled up the invalidity of the sale for the alleged failure to advertise the sale according to the requirements of the mortgage assumed the burden of overcoming this prima facie case of the sufficiency of the advertisement.
The chancellor in a well considered opinion held, “that the advertisement of the mortgage sale appeared regularly and consecutively for three weeks in the Attalla Herald (a weekly newspaper' published in the county of Etowah), in accordance with the provisions and stipulations of the mortgage, with the exception, perhaps, of a few copies of the paper which were sent to the probate judge, clerk and register of the county, and which were not intended for them, but were to be sent to nonresident subscribers of the paper.” It appears that during the time of the appearance of the notice of sale, the advertisement olid not appear in all the copies of the paper printed, except that in a few copies towards the last of one or two of the editions, it was taken out, and that a solid or block cut of the advertisement of a patent medicine or a newspaper, was put in its piace, and these *334copies were intended for the advertisers of snch things, to let them see that their cuts were appearing; hut, as for the domestic subscribers, it satisfactorily appears the mortgage sale notice appeared in the copies mailed or sent out. It further appears that respondents knew nothing of this till long after the foreclosure sale, nor did complainants, and had nothing to do with it. We fail to see why the notice of sale which was given, was not in substantial compliance with the requirements of the mortgage.
The chancellor also decided, that the non-appearance of the notice in a few copies of the paper stricken off for the non-residents, was, at most, nothing more than a mere irregularity in giving notice, coming clearly within the terms of the agreement of the parties to the mortgage, namely, that 'any irregularity in giving the notice should not in any manner affect the sale. It is unnecessary for us to decide that question, as the one above referred to is fully decisive o'f the case. Let the decree of the lower court be affirmed.
Affirmed.