Heath v. Hall

By the Court

Emmett, C. J.

This action was brought to set aside a sale of real estate made in pursuance of a power contained in a mortgage. The Plaintiff is the grantee of the mortgagor, and as such was resident upon and in the occupancy of the mortgaged premises, at the time of the publication of the notice of sale as hereinafter mentioned. The Defendant is the assignee of the mortgage, and the purchaser at the sale.

As there was no newspaper published in the county where the premises sold were situated, the notice of the intended sale was published in a newspaper printed in an adjoining county, as directed by the statute. The Plaintiff however was not served with a copy of said notice, as required by section (32) p. 592 of tlie Comp. Stats., and he therefore claims that the sale is void for this omission.

On the other hand, the Defendant insists that said section is in direct conflict with the provisions of chap. 75 of the Comp. Stats., which are specially directed to the subject of “Foreclosure of Mortgages by Advertisementand therefore that the provisions of the latter must prevail, under the rule of interpretation found in section (19) chap. 3, Comp. Stat.

The rule referred to is in the language following :

“ If the provisions of different chapters of the Revised Statutes [1851] conflict with or eontrovene each other, the provisions of each chapter shall prevail, as to all matters and questions growing out of the subject matter of such chapter.”

This is merely a legislative indorsement of a rule laid down and long acted upon by the Courts of England and America, and which doubtless suggests the proper solution where conflicts occur between the provisions of different chapters, but we must be allowed to say that its authority as a rule, stands upon its judicial, rather than its legislative indorsements. We do not think however that it can serve the Defendant in this case, because, in our opinion the different provisions of the statute alluded to, are not in conflict, in the sense contemplated by the rule.

They certainly do not conflict in the ordinary sense of the term, because they might all have been placed in one chapter, without the slightest clashing or inconsistency. The section which provides for publishing the notice of the sale in a newspaper printed in an adjoining county, is entirely consistent with the one requiring a copy of such notice to be served in such cases upon the party in possession of the premises.

But, says the Defendant, there is an inconsistency in this: that the first section of said chapter 7o declares that every such mortgage may be foreclosed “in the manner hereinafter specified,” which is equivalent to a declaration that if the provisions of that chapter alone be complied with, the sale or foreclosure shall be valid, whereas if anything more shall be required, it is in direct conflict with this declaration.

This, we think, is too rigid a construction of the rule above referred to. We cannot give it this application without assuming that whatever rules and regulations the Legislature desire to prescribe, with reference to such sales, they must, in order to merit observance, all be given in the chapter devoted to that particular subject. This would be tying that body down rather too closely. It is inconvenient, and perhaps annoying, that the rules to be observed, are not all to be found in the chapter where we would naturally seek for them ; parties may even be misled thereby to their prejudice. But so long as the legislature may arrange the laws, as to them may seem best, we must rest content, though the arrangement may not be such as we desire. They certainly had the power to scatter these provisions through half a dozen different chapters or acts, and unless they are inconsistent, one with another, we must consider all as binding.

Nor do we think that the necessary interpretation of the first section of chapter 75 is that nothing more need be observed than what is subsequently pointed out in that chapter. It is true that it may be so read, but it may also be interpreted, as simply declaring that the requisites thereinafter enumerated shall be observed without however excluding the existence of additional requisites elsewhere. The provisions of said section (32) of chapter 63, are of equal importance with those of said chapter 75, and we are all presumed to know the one as well as the other. Had all these sections been included in the same chapter, the Defendant would have been held to a strict observance of the particular section which he now seeks to avoid; and it would' have been no excuse for the omission that a subsequent section declares that such mortgages may be foreclosed “in the manner lierevnafUr specified,” and that he had duly observed all the requisites following such declaratory section. So too if the section now objected to had been embodied in a subsequent act of the legislature. In the latter case a plea that the .chapter on the particular subject of foreclosure by advertisement, gave him no inkling that a copy of the notice of sale was required to be served on the party in possession in certain cases, would not have availed the Defendant. He would have been told that he was bound to notice the law, or submit to the consequences of an omission.

Is he not equally bound to notice it as it now occurs % The great importance of the section, in view of the fact that without some such provision the property might be sold and the time for redemption expire before the only party interested received notice of the intended sale, forbids the idea that the Legislature did not intend that it should be complied with. And what is there to lead the mind to a different conclusion ? Nothing, save that in a subsequent part of the same act there occurs a chapter on the subject of the “foreclosure of mortgages by advertisement ” in which the Legislature did not think it necessary to repeat a section which had already been inserted under a different head. There is nothing as we have previously stated, in this subsequent chapter which is really inconsistent with the section previously enacted. Nothing in any portion of tbe act evincing any direct intention on tbe part oí tbe Legislature to dispense with tbe notice so particularly provided for; and we do not feel authorized to bold, either that tbe Legislature meant nothing by tbe section, or that an intention to dispense with such notice is necessarily implied from tbe mere omission to reenact it in this chapter.

Ve believe that the Legislature was not obliged to incorporate in tbe same chapter all tbe provisions of that act relating to such sales; and that tbe particular section to which our attention has been directed in this case, was passed to tbe end that its provisions might be complied with. And being unable to discover that it necessarily conflicts with or contravenes any of the provisions of chapter 75 of the Comp. Stat., (chap. 85 of said act,) we hold that it is binding equally with other portions of the act.

The Defendant further insists however, that even if said section should be considered as of binding force, yet it is directory merely ; and any omission to comply with its provisions should not of itself vitiate the sale, unless the Plaintiff should show affirmatively that he has been prejudiced by the omission, or that the Defendant acted fraudulently.

This position, though plausible, cannot, we think, be maintained, in view of the evils which it might give rise to ’in practice, and the decision which this Court has already made in Dana and Brome vs. Farrington and wife, 4 Minn., 433. In that case we held, after an elaborate argument of the question, that in transferring or divesting the title of one person to real estate, and vesting it in another, by any of the statutory modes, such as tax sales, or mortgage sales under a power contained in the mortgage, it is the duty of the Courts to require a strict compliance with the requisites' prescribed by law, in every essential particular ; and therefore we set aside a sale made under a power, because the mortgagee, after notice had been once published, changed the day of sale therein named, from the 23d to the 25th of the same month, although it appeared that such alteration was made in good faith; and that tiie notice as altered was published for the requisite time after such alteration. It is true, however, that in that case it was found that the mortffasror had been misled by tbe first publication, but it was distinctly field tfiat fie fiad a rigfit to know wfien fiis property was to be sold under tfie mortgage, and tfie determination to fiold the mortgagee to a strict observance of every statutory requisite is clearly manifested throughout tfie opinion.

We are unable to see why the.provisions of this particiilar section are less worthy of observance than those of any other section relating to such sales. They are, in one sense, but an evyparte proceeding, and if tfie provisions of this section are not complied with, the only party interested may never know, until it is too late, tfiat tfie property has been sold, for it is by the observance of this section alone that the mortgagor or fiis successor in interest, or even bidders in the county where tfie land must be sold, are to learn of the intended sale. If tfie section be directory merely, it may be disregarded in every instance, and we are therefore to decide whether it must be observed in all cases falling within its terms, or may be omitted in every case. Tfie difference in degree of tfie injury which tfie different parties may receive in such cases is very wide, for while on tfie part of the mortgagor, or fiis successor in interest, the loss may extend to nearly tfie whole of tfie property if such sales are sustained, tfie mortgagee, on tfie other band, can only lose tfie costs and expenses of tfie sale, while fie at tfie same time retains all tfie securities.

We cannot resist tfie conclusion tfiat tfie interests of all parties will be best protected by holding the mortgagee and fiis successors to as strict an observance of this as of the other provisions relating to such sales, and therefore we affirm tfie order of tfie District Court overruling the Defendant’s demurrer to the complaint in this case, and remand the case for judgment thereon.