Hooper v. Young , 58 Ala. 585 ( 1877 )

STONE, J.

The able and well-considered opinion of tbe Chancellor makes a plausible case for bolding that tbe sale on November 15th, 1875, was premature. We feel constrained, however, to bold that in this be erred. Tbe original consent decree of June 11th, 1875, first ascertained the several amounts due complainants, with a stay of tbe execution of the decree till November 15, 1875.' Its language is : “It is therefore ordered, adjudged and decreed that tbe register proceed on or after tbe 15th day of November, 1875, to sell tbe lands described in tbe mortgage,” &c. If the decree bad rested on what is stated above, and bad not contained tbe provisions after stated, no one would doubt that tbe advertisement might precede, and tbe sale be made on the 15th November. It was tbe sale which was postponed to that day, not tbe advertisement. Tbe fifteenth day of November, 1875, fell on Monday, and tbe effect of the decree was that tbe register, “after first giving notice of tbe time, place and terms of said sale, . . . for -three successive weeks,” might proceed to sell, “upon or after tbe 15th day of November, 1875,” &c. We repeat, if tbe decree contained no clause or words which qualify or limit this general authority to sell, no one would question the right to sell on the 15th day of November.

But the decree does contain a limitation on this general authority to sell, inserted obviously for the accommodation and benefit of the defendants. It was conditional in its terms, and operates as a contingent defeasance of the previously conferred authority and right. It was a privilege granted to the defendants to obtain further delay in the execution of the decree, by making partial payment “before the 15th day of November, 1875.” Its language is, “If before the 15th day of November, 1875, the said defendants shall pay the costs of this suit and two hundred dollars, . . . then the sale of said land shall be stayed until the 15th day of November, 1876, when said sale shall take place in the same manner and upon the same terms,” &e. There were then added other provisions, precisely like the last, for further extension of the day of sale, on making designated partial payments by the defendants. Neither of said conditional provisions varied from the language copied above; and, in each case, the I5th day of November is the named day, when, or, at which time, the sale was to take place. The last paragraph of the decree is in the following language : “That if the register should fail to advertise and sell said land on any of the days herein mentioned, on which he is directed to sell, he shall do so at as early a time after said days mentioned as may be convenient; and if the defendants fail to pay any of the amounts herein specified, then no further delay shall be had in regard to the sale of said lands,” &c.

It will be observed that the language of the decree is, if the defendants pay “before the 15th day of November.” The meaning of the word ‘before’ in this connection, is earlier than, ¡previous to. It confers no right to pay on the 15th of November, and thus secure the right to further extension. To claim that, as matter of right, the defendants must have paid earlier than — previous to — the 15th day of November. This was matter of contract, expressed in the decree; and not a mere legal construction of the usual decree to sell. True, the defendants had the right to pay, and thus stop the sale, up to the very moment when the property was sold; but it was not a right growing out of the conditions above expressed. It was but the common right of all judgment or execution debtors, to pay the money demanded, and thus prevent tbe sale of their property; for, in such cases, payment of the money is a finality. But, to have this effect, the payment, if made on the 15th, must not simply be of the $200 and costs. It must be of the entire decree and costs. We hold that the decree in the present case gave to the register the general power to sell on the 15th day of November, with a privilege to the defendants to arrest the sale — not the-advertisement — by making a specified partial payment before the 15th. We hold that the register’s sale was not prematurely made.

There is nothing in the cross assignment of error. The decree of the Chancellor being silent as to the place of sale, it was the duty of the register to sell the lands at the door of the court-house. — Matheson v. Mearin, 29 Ala. 210.

On the cross assignment of errors, we concur with the Chancellor in holding that the sale should not be set aside, by reason of the failure of-the decree to designate the place of sale-.

The decree of the Chancellor, setting aside the sale as prematurely made, is reversed, and a decree here rendered, confirming the sale made by the register. Let the costs be paid by the appellee.