The Gold Dirt Mining and Milling Company v. The Perigo Mines, Land and Townsite Corporation et al.

[No. 6335.] The Gold Dirt Mining and Milling Company v. The Perigo Mines, Land and Townsite Corporation et al. Deed of Trust — Notice of Sale — A deed of trust authorized a sale of the lands, after “four weeks public notice of the time and place of such sale by advertisement weekly, in some newspaper of general circulation.” The notice of sale • thereunder, to take place on the 12th of December, was, published on the 10th, 17th and 24th days of November, and the 1st day of December. Held a compliance with the power contained in the deed of trust, and with the statute (Laws 1894, c. 6, sec. 5, 3 Mills’ Stats., sec. 4559.) — (198, 199) Error to Gilpin District Court — Hon. Floe Ashbaugh, Judge. Mr. George S. Redd, and Mr. George Stidger, for plaintiff in error. Messrs. Hicks & Williams, for defendant in error. [MAJORITY — Chief Justice Steele] Chief Justice Steele delivered the opinion of the court: The action was brought for the purpose of setting aside a sale of real estate .made by the public trustee of Gilpin county, under a certain deed of trust given to secure the payment of twelve promissory notes of $10,000.00 each. At the close of the plaintiff’s case, the court directed the entry of a judgment of nonsuit. To review this judgment, the case is brought here. The case is now pending on writ of error, the appeal having been dismissed. The only point made by the plaintiff in error is, that the notice of sale was not published for the length of time required by the statute. The trust deed authorized a sale after “four weeks public notice * * * of the time and place of such sale, by advertisement weekly, in some newspaper of general circulation, at that time published in said Gilpin County.” The statute provides (§ 4559, 3 Mills’ Ann. Stats., Rev. Supp.): “All deeds of trust shall prescribe a period of advertising notice of sale, weekly, in some newspaper of general circulation, which publication shall not in any case be for less than four weeks. ’ ’ The notice was published, as shown by the affidavit of the printer, in the “Weekly Register-Call,” a newspaper published in Gipin county, for four consecutive weeks; that the first publication was on the 10th day of November, 1905, and the last publication on the 1st day of December, 1905. Public notice of a sale to take place on'the 12th day of December was published on the 10th, 17th and 24th of November, and the 1st day of December, 1905. The sale occurred more than four weeks after the first publica-, tion, and the notice thereof was published four times prior to the sale. The notice given was, in onr opinion, in compliance with the statute, as well as the deed of trust; and the judgment must, therefore, be affirmed. Affirmed. Mr. Justice Gabbert and Mr. Justice White concur.