Olcott v. Robinson , 20 Barb. 148 ( 1855 )

By the Court, James, J.

The validity of the judgment under which the plaintiff makes title to the premises in question, the regularity of the execution issued thereop, and all proceedings under it, except the publication of the notice of sale, are not disputed; so that the only question presented for consideration is, whether in the publication of the notice of sale under the execution, the requirements of the statute have been sufficiently complied with to vest in the plaintiff title to the premises in dispute. The statute is in substance as follows: “ The time and place of holding any sale of real estate pursuant to any execution, shall be publicly advertised, previously, for six weeks successively, as follows: First. A written or printed notice thereof shall be fastened up in three public places in the town, &c. Second. A copy of such notice shall be printed once in each week in a newspaper of such county, &c. (2 R. S. 368, § 34.) In the present case notice was posted, &c. forty-three days previous to the day of sale, making six full weeks; but the notice published in the newspaper, although it received six separate insertions, once in each week for six successive weeks, was first published only thirty-nine days previous to the day of sale. This publication the defendant insists is insufficient, and a defect, fatal to the validity of the deed taken under it; while the plaintiff insists that all the requirements of the statute were fully and literally complied with, and the title acquired by virtue of such sale complete in the purchaser.

I am however compelled to differ with the plaintiff in his view of the case. The statute is imperative. It requires the time and place of holding any sale of real estate on execution to be publicly advertised six weeks previously, in two ways ; both should commence six weeks previous to the day of sale; a less time is expressly prohibited, and the prohibition is as much applicable to one branch of advertising as the other. If both are not complied with, the sale must of necessity be invalid. It is an old maxim of the law, that “ every statute authority to dives] the title of one without his consent and transfer it to another, must be strictly pursued, or the title will not pass.” That not having been done in this case, the sheriff’s deed gave no title to the plaintiff in the premises in dispute.

[Essex General Term, July 2, 1855.

It is insisted that such a construction will make seven insertions of the notice in the newspaper necessary to the validity of a sale under execution, by reason of the rule of computation which excludes the first day. But that would not necessarily follow. The first publication is the beginning of the act, and although the day on which the act was done might be excluded in the computation of the time, if the notice is published six times, once in each week, reckoning the first publication as one, that would be sufficient, without a seventh publication on the day of sale. This construction harmonizes all the provisions of section 34 ; the property is advertised previous to the sale, by both posting and publication, six full weeks ; and also by a publication once in each of the six weeks ; thus fulfilling both the letter and spirit of the statute.

If however, from the language of the statute, a seventh publication were necessary to give validity to a sheriff’s sale, the statute must be obeyed without regard to its effect upon particular cases.

The circulation of the notice of sale in the slips headed “ Plattsburgh Republican, Extra,” will not aid the plaintiff. It was not such a printing in a newspaper as was contemplated by the statute.

There must be judgment for the defendant.

C. L. Allen, Bockes and James, Justices.]