ALLEN THAYER vs. WILLIAM FELT.

ALLEN THAYER vs. WILLIAM FELT.

4 Pick. 354, 21 Mass. 354

October, 1826

Norfolk County

Sunday is not to be reckoned one of the three days for which an officer may adjourn sale of an equity of redemption taken on execution.

Writ of entry. On a case stated it appeared, that in January 1820, one Fairbanks conveyed the demanded premises to one Griggs in mortgage; that in February following, one Chapin attached the right in equity of redemption, and afterwards caused it to be sold on execution; that the officer, in his return of the execution, stated that on the fourth of November, 1820, (which was Saturday,) he exposed the right in equity of redemption for sale, and for want of purchasers, adjourned the sale to the eighth, and that he then again adjourned the sale to the eleventh, when he sold the right in equity to the grantors of the tenant. The demandant claimed under an attachment made in May 1820 of the right in equity; and a subsequent levy in 1823.

Metcalf, for the demandant, referred to St. 1798, c. 77. § 4, which allows the officer, in disposing of a right in equity of redemption taken on execution, to "adjourn the vendue, not exceeding three days;" and he contended, that in reckoning the three days, Sunday was not to be excluded, and consequently, that this sale was illegal, and the tenant's title invalid as against another attaching creditor. Warren v. Leland, 9 Mass. 265 ; Caldwell v. Eaton, 5 Mass. 399 ; Alderman v. Phelps, 15 Mass. 225 . In reckoning time under a statute, Sunday is always to be included, (as in the case of fourteen days' notice of suits,) unless it contains an express provision to the contrary, as in St. 1797, c. 35, respecting notice to attend the taking of depositions. There is no necessity in the present case for excluding Sunday, since the officer may adjourn the vendue one, two or three days, which ever may be most convenient. Officers in this county, in seizing chattels on execution, always take care that the four days, at the end of which they are to be sold, (St. 1783, c. 57, § 5,) shall not expire on Sunday: That day is dies non juridicus only in regard to things which are to be trans-

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acted in court. Asmole v. Goodwin, 2 Salk. 624; Lord Coningsby's case, 8 Mod. 46; Davy v. Salter, 6 Mod. 250; Harvey v. Broad, ibid. 148, 159; Geer v. Putnam, 10 Mass. 312 .

W. Sullivan, for the tenant.

WILDE, J. delivered the opinion of the Court. The tenant's title is founded on the purchase of a right in equity at a sheriff's sale, by virtue of which he has since redeemed the demanded premises from a preexisting mortgage; and it is admitted, that if the sale is valid, the tenant is entitled to judgment. The only objection made to it is a supposed irregularity in the proceedings of the sheriff; who did not make sale of the estate at the time appointed, but adjourned the vendue for the space of four days; which exceeds the time limited by the statute regulating such sales. (St. 1798, c. 77.) [Note 1] It appears, however, that one of those days was Sunday; so that the question is, whether Sunday is to be reckoned one of the enumerated days referred to in the statute.

In support of the affirmative of the question, the demandant's counsel rely on the case of Alderman v. Phelps, 15 Mass. 225 . In that case it was decided, that where the thirty days, during which property attached on mesne process is held subject to execution, expires on Sunday, the lien created by the attachment does not continue through the next day.

This construction of the statute relating to attachment seems applicable to every statute, wherein the time limited for a particular purpose, is such as must necessarily include one or more Sundays, unless they are expressly excluded, or the intention of the legislature to exclude them appears manifest. But it does not follow that the same construction is to be given to a statute wherein the time limited is less than a week, and which, therefore, may or may not include Sunday. [Note 2]

The question then is, what was the probable intention of the legislature.

If Sunday is to be included, it must follow, that if a sale be adjourned on Thursday, Friday, or Saturday, only two days are to be allowed for the purposes of the adjournment,

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as on Sunday the transaction of all secular business is prohibited. [Note 3] We cannot think that this would be a reasonable construction of the statute. We apprehend the intention of the legislature was, to limit the time of adjournment to the shortest period within which notice might be conveniently given and preparations made for the adjourned sale: [Note 4] and that three business days were to be allowed for these purposes. If it were required that adjournments should only be made from day to day, still no one would doubt that an adjournment from Saturday to Monday would be legal, for every statute must have a reasonable construction.

The construction we give to the statute in this case, is conformable to the construction which has been given to the rules of Court allowing time for pleading and other matters; and is supported by the principles laid down in the case of Avery v. Stewart, 2 Conn. 69. It is not in opposition to the rule respecting days of grace allowed on bills of exchange and promissory notes; for that rule depends altogether on the custom of merchants. It has been said however to be opposed to the practical construction, which has been given to the statute regulating the sale of goods and chattels taken on execution. Whatever may have been the practical construction of that statute, it does not appear to have been sanctioned by any judicial decision; and it would not be proper to decide upon it extra-judicially. If that statute has received such a practical construction as is supposed, it ought not to be received as a rule for the construction of other statutes, unless it is a reasonable construction. Now it is obvious, that if Sunday is to be included as one of the enumerated days under that statute, the consequence would be, that a seizure of goods on execution on Wednesday would be void, for the goods must be sold the fourth day, and that being Sunday, the sale would be void; another creditor therefore might attach and hold the goods, notwithstanding the seizure; and this certainly would not seem to be a reasonable construction of the statute. Such a construction, unsupported by authority, would not be a safe guide for us in the construction of another statute.

Upon the whole, therefore, we are of opinion, upon the

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facts agreed, that the tenant's title under the sheriff's sale is valid, and, according to the agreement of the parties, the demandant is to become nonsuit.

FOOTNOTES

[Note 1] See Revised Stat. c. 73, § 40.

[Note 2] By the

Revised Statutes, (c. 73, § 40,) the sale by the officer may be adjourned for any time not exceeding seven days. It would seem from the text that Sunday is not now to be excluded. In New York it is held, that the proceedings in the statute foreclosure of a mortgage are not void because the day of sale specified in the advertisement happens on a Sunday. A sale on Sunday under such proceeding is not, it seems, prohibited by statute. Sayles v. Smith, 12 Wendell 57.

[Note 3] See

Sayles v. Smith, 12 Wendell 57, where it is held, that all acts in the transaction of business done on Sunday are as valid as if done on any other day of the week, unless prohibited by the common law or by statute. See also the last preceding note.

A transfer of personal property made on Sunday is valid, and the title to the property passes. Boynton v. Page, 13 Wendell 425. See this subject discussed and a contrary decision made, in Lyon v. Strong, 6 Vt. 219

See also Fox v. Abel, 2 Conn. 541; 13 Amer. Jurist 378.

[Note 4] See Scribner v. Whitcher, 6 N.H. 63.