{ "id": 4714423, "name": "DEWITZ et al. v. JOYCE-PRUITT COMPANY", "name_abbreviation": "Dewitz v. Joyce-Pruitt Co.", "decision_date": "1915-07-28", "docket_number": "No. 1780", "first_page": "572", "last_page": "576", "citations": [ { "type": "official", "cite": "20 N.M. 572" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "43 Pac. 88", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": -1 }, { "cite": "110 Pac. 575", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": -1 }, { "cite": "14 La. Ann. 831", "category": "reporters:state", "reporter": "La. Ann.", "case_ids": [ 8509268 ], "opinion_index": -1, "case_paths": [ "/la-ann/14/0831-01" ] }, { "cite": "12 Iowa, 5", "category": "reporters:state", "reporter": "Iowa", "opinion_index": -1 }, { "cite": "16 Iowa, 534", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2291617 ], "opinion_index": -1, "case_paths": [ "/iowa/16/0534-01" ] }, { "cite": "9 Pac. 466", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": -1 }, { "cite": "15 La. Ann. 679", "category": "reporters:state", "reporter": "La. Ann.", "case_ids": [ 573640 ], "opinion_index": -1, "case_paths": [ "/la-ann/15/0679-01" ] }, { "cite": "10 N. M. 555", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 11272610 ], "opinion_index": -1, "case_paths": [ "/nm/10/0555-01" ] }, { "cite": "4 Iowa, 482", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2271626 ], "opinion_index": -1, "case_paths": [ "/iowa/4/0482-01" ] }, { "cite": "11 Kan. 93", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 603473 ], "opinion_index": -1, "case_paths": [ "/kan/11/0093-01" ] }, { "cite": "5 N. D. 588", "category": "reporters:state", "reporter": "N.D.", "opinion_index": -1 }, { "cite": "95 N. W. 368", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": -1 }, { "cite": "70 Pac. 276", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": -1 }, { "cite": "75 Am. Dec. 701", "category": "reporters:federal", "reporter": "Am. Dec.", "pin_cites": [ { "page": "708" } ], "opinion_index": 0 }, { "cite": "6 R. I. 282", "category": "reporters:state", "reporter": "R.I.", "case_ids": [ 4884525 ], "opinion_index": 0, "case_paths": [ "/ri/6/0282-01" ] }, { "cite": "22 N. W. 824", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "56 Mich. 329", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1430154 ], "opinion_index": 0, "case_paths": [ "/mich/56/0329-01" ] }, { "cite": "44 Am. St. Rep. 657", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "30 Atl. 1002", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "165 Pa. 248", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 862087 ], "opinion_index": 0, "case_paths": [ "/pa/165/0248-01" ] } ], "analysis": { "cardinality": 528, "char_count": 8930, "ocr_confidence": 0.47, "pagerank": { "raw": 1.7259971332222014e-07, "percentile": 0.7046704267314426 }, "sha256": "9a08ea7fc904f4c8ad999b61a98e307fedecf108c8c92337eeb60e5286ddc69f", "simhash": "1:b7be63213432f42f", "word_count": 1586 }, "last_updated": "2023-07-14T15:28:16.553126+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Hanna, J., concurs.", "Roberts, C. J., being absent, did not participate in this decision." ], "parties": [ "DEWITZ et al. v. JOYCE-PRUITT COMPANY." ], "opinions": [ { "text": "OPINION OF THE COURT.\nPARKER, J.\n\u2014 This is an appeal from a decree confirming a sale under a mortgage foreclosure. Upon the coming in of the referee\u2019s report of sale, the appellants filed objections to the-confirmation of the sale, setting up various objections, some of which are available and some are not.\n. The proposition principally relied upon is that the notice of sale was not given as required by statute. The argument is made that under the terms of section 4647,. Code 1915, which directs that notices of this character shall be published \u201conce each week for four successive weeks,\u201d requires that at least 4 weeks, or 28 days, expire between the first insertion of the notice in the newspaper and the date of sale. Provisions similar to these have been before the courts, and two lines of decisions are plainty marked out. In some of the states a provision like ours has been held to require only 4 insertions of the notice in a weekly newspaper, and not to require the expiration of the full 28 days between the first notice and the date of sale. Thus, in Hollister v. Vanderlin, 165 Pa. 248, 30 Atl. 1002, 44 Am. St. Rep. 657, the statute required an execution sale to be advertised \u201conce a week during three successive weeks,\u201d and the court held that an advertisement in each of the 3 successive weeks- was sufficient, although there may not have been 21 full days between the first advertisement and the date of sale. On the other hand, in Bacon v. Kennedy, 56 Mich. 329, 22 N. W. 824, the statute provided that notice should be published \u201conce a week for twelve successive weeks\u201d in a statutroy foreclosure of a mortgage. The court held that 12 full weeks must elapse between the first notice and the sale. See, also, on this subject, 2 Freeman on Ex. (3d Ed.) \u00a7 285e , and note to Hoffman v. Anthony, 6 R. I. 282, 75 Am. Dec. 701, 708. There is a provision in our statute, however, which is determinative of the question. The section above referred to contains the following:\n\u201cIf such publication -shall be notice of the pendency of a suit, in a district court, the last insertion shall be at least twenty days before the date on or before which the defendant is notified to appear. In all other cases the last insertion shall be at least three days before the date fixed in such notice for the taking of the action concerning which the publication is made.\u201d\nIt therefore clearly appears from the terms of the statute, itself, that 28 full days need not elapse between the first insertion of the notice and the day of sale, because, if a sale under a mortgage foreclosure may be made 3 days after the fourth and last insertion of the notice, necessarily 28 days cannot have elapsed since the first publication. We therefore hold that this section of the statute is complied with if 4 successive weekly notices of such sale are. published, and said sale takes place not less than 3 days after the last insertion of the notice in the newspaper.\nFurther objection to the confirmation of the sale is made because the amount of principal and interest to date of sale was not specified in the advertisement. The argument is based upon section 2198, Code 1915, which prescribes the contents of notices of judicial sales, and provides, among other things, that the notice shall contain a statement of the amount of the decree \u201cwith interest to date of sale.\u201d The notice in question contains the statement:\n\u201cThe amount for which said property will be sold, exclusive of the costs of making said sale with interest as provided by said decree, is, to-wit: Decree of foreclosure (principal) $1,567.- 25: interest as provided in said decree, $103.44; costs in district and Supreme Courts, $27.10'\u2014 total, $1,697.7?\u201d\nThe argument is made by counsel that this is not a statement of the amount of principal and interest to the date of sale as required by the section, but is merely a statement of the amount for which the propeity will be sold. We do not consider the 'argument as of any importance. It clearly appears from the notice that the amount of principal and interest to the date of sale is stated therein, and no one could have been misled by the slight informality of the notice.\nThe argument is further made that the sale is void for the reason that the notice stated that the amount for which the property would be sold was $1,697.79, while the sale was in fact made to the appellee for the sum of $1,200, being $497.79 less than the amount advertised. There is no showing, however, that the property sold for less than its actual value, and it does not appear that the appellants were in any way misled to their injury by the fact that the selling price was less than the amount due on the mortgage, as advertised. Under such circumstances, the appellants have no ground for objection to the confirmation of the sale.\nCounsel for appellants suggest that appellee had no right to bid in the property at the sale, there being no express authority in the decree to do so. But the point is not relied upon for a reversal, as, indeed, it probably could not be.\nIt is argued by appellants that the decree is defective and invalid, but they are precluded from raising any such question in this proceeding; it having on a former appeal been determined that the decree should be affirmed.\nThere is no error in the record, and for the reasons stated the judgment of the lower court will be affirmed, and it is so ordered.\nHanna, J., concurs.\nRoberts, C. J., being absent, did not participate in this decision.", "type": "majority", "author": "PARKER, J." } ], "attorneys": [ "Bujac & Beige of Carlsbad and C. M, Botts of Albuquerque, for appellants.", "S. D. Stennis, Jr., of Carlsbad, for appellee." ], "corrections": "", "head_matter": "[No. 1780,\nJuly 28, 1915.]\nDEWITZ et al. v. JOYCE-PRUITT COMPANY.\nSYLLABUS BY THE COURT.\n1. Under section 4647, Code 1915, which requires notices \u25a0of sales to be published \"once each week for four successive weeks,\u2019\u2019 dees not require that full four weeks shall elapse between the first insertion of the notice in the newspaper and the day of sale, but the sale may be had at any time not less than three days after the fourth and last insertion.\nP. 574\n2. The informality in a notice of sale under a decree of foreclosure of a mortgage, by reason of a failure to state, in terms, the amount of principal and interest to date of sale, :as required by section 2198, Code 1915, but where the amount is stated as the amount for which the property will be sold, is not sufficient to avoid the sale. ^ P. 575\n3. The fact that property is advertised to be sold under a foreclosure decree for a certain sum, and is sold for a lesser \u25a0sum, does not prevent confirmation of- the sale in the absence of a showing that it sold for less than its value, or that the mortgagors were misled to their prejudice thereby.\nP. 576\nAppeal from District Court, Eddy County; Richardson, \u2022Judge.\nAction between Elise Dewitz and Paul E. Dewitz, and the Joyce-Pruitt Company, a corporation. Prom a judgment confirming a mortgage foreclosure sale, Elise and Paul E. Dewitz appeal.\nAffirmed.\nBujac & Beige of Carlsbad and C. M, Botts of Albuquerque, for appellants.\nA mortgage foreclosure sale must be supported by a valid judgment or decree of a competent court.\n27 Cyc. 1680; 24 C]rc. 10 and cases cited.\nThe notary taking the acknowledgment to the mortgage was a stockholder and director of the corporation,, which rendered the mortgage void.\nFirst National Bank v. Citizens\u2019 National Bank, 70 Pac. 276; Devlin on Deeds, 476-477d; Chadxon, etc., v. O\u2019Linn,. 95 N. W. 368.\nSpecial master had not power to make the sale because the notice thereof required by statute was not given.\nSec. 5, chapter 49, Laws 1912; sec. 3115, C. L. 1897.\n\u201cFour successive weeks\u201d means \u201cthroughout\u201d or \u201cduring the continuance of.\u201d\n3 Century Dictionary, p. 2314; Fincllayson v. Peterson,. 5 N. D. 588, 33 L. B. A. 531; McCurdy v. Baker, 11 Kan. 93; Leffler v. Armstrong; 4 Iowa, 482; Bell Mining Co. v. First National Bank, 156 II. S. 470; Blackwell v. Bank of Albuquerque, 10 N. M. 555.\nSale is void because mortgagee or trustee purchased at sale.\n27 Cyc. 1701.\nSale is void because made for less than advertised price- and contrary to the conditions set out in the notice of sale..\n9 Ene. T. & P., 489-501, 503.\nS. D. Stennis, Jr., of Carlsbad, for appellee.\nIVTien an ambiguity in a judgment admits oE two constructions it should be construed with reference to the-pleadings.\n1 Black on Judgs., sec. 3; Pennister v. Somers, 15 La. Ann. 679.\nReference may be had to other pleadings and proceedings to clarifv the meaning of a judgment.\nClay v. Hildebrand, 9 Pac. 466-470; Freeman Judg., sec. 45; Fowler v. Doyle, 16 Iowa, 534; Finnagan v. Manchester, 12 Iowa, 5.21; Bell v. Massey, 14 La. Ann. 831;-Wirt v. Kutz, 110 Pac. 575; Caravan v. Canavan, 13\u00cd Pac. 493; sub-secs. 78 to 96, see. 2685, C. L. 1897.\nThe validity of the mortgage cannot be questioned. Basel tine v. Gilleland, 43 Pac. 88.\nJn absence of fraud, undue influence, etc., the mortgagee may purchase the eciuity of redemption of the mortgagor the same as any other person.\nJones on Mortgages, 711." }, "file_name": "0572-01", "first_page_order": 588, "last_page_order": 592 }