Opinion of the Court.

BELL SILVER AND COPPER MINING COMPANY v. FIRST NATIONAL BANK OF BUTTE.

ERROR TO AND APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF MONTANA.

No. 154. Argued January 16, 17, 1895. Decided March 4, 1895.

A provision, in a deed of real estate in trust to secure the payment of a debt, which authorizes the trustee to sell the property at auction on breach of condition, first giving thirty days' notice of the time and place of sale by advertising the same for three successive weeks in a newspaper, is complied with so far as respects notice, by publication of such notice for three successive weeks, the first publication being more than thirty days before the day of sale.

If such notice describes the property to be sold in the language of the mortgage, it is sufficient.

A trust deed in the nature of a mortgage may confer upon the trustee power to sell the premises on default in the payment of the debt secured by the deed, and a sale thereunder, conducted in accordance with the terms of the power in the deed, will pass the granted premises to the purchaser on its consummation by conveyance; and this rule obtains in Montana, notwithstanding the provisions in § 371 of its Revised Statutes.

THE case is stated in the opinion.

Mr. A. H. Garland, (with whom was Mr. W. F. Sanders on the brief,) for plaintiffs in error and appellants.

Mr. M. Kirkpatrick, (with whom was Mr. William Scallon and Mr. W. W. Dixon on the brief,) for defendants in error and appellees.

MR. JUSTICE FIELD delivered the opinion of the court.

This case is before us on appeal from a judgment of the Supreme Court of the Territory of Montana, affirming a judgment of one of its district courts.

The original action in the district court was ejectment commenced by the plaintiffs in Silver Bow County for the possession of two mining claims situated therein. It was

Opinion of the Court.

tried by the court without the intervention of a jury upon certain agreed facts in the nature of a special verdict.

It appears by them that on the twenty-fifth of April, 1882, the defendant, the Bell Silver and Copper Mining Company, a corporation organized under the laws of Montana, was the owner and in possession of the mining ground described in the complaint, the other defendants named being at the time upon the premises under contract with the company. On that day the defendant company executed and delivered to the grantees therein designated an indenture reciting that it was authorized by the laws of the Territory of Montana, by its articles of incorporation, and by a vote of its trustees, to execute trust mortgages of all its property, real, personal, and mixed, to secure the payment of bonds issued by it, and it was about to issue sixty bonds in the sum of one thousand dollars each to secure a loan of sixty thousand dollars to be made to it; and declared that in order to secure the payment of the bonds to be thus issued, and interest thereon, it had granted, bargained, sold, and conveyed, and by those presents did grant, bargain, sell, and convey, to Samuel Wells and Theodore H. Tyndale, as trustees, and the survivor of them, their successors in trust and assigns, the property described in the complaint, with all the buildings, privileges, franchises, and appurtenances this last clause not to be construed so as to prevent the company from selling old materials in the ordinary course of business, to be replaced by new, nor to prevent it from mining, reducing, or selling ore from the mine in the ordinary course of business, meaning and intending thereby to mortgage all the property, real, personal, and mixed, of whatever nature or name, owned by the party of the first part, but upon the following express trusts, that is to say, that in case the Bell Silver and Copper Mining Company should fail to pay the principal or any part thereof which might fall due on the bonds secured thereby, at any time and place when and where the same might become due and payable according to the tenor and effect thereof and for thirty days thereafter, then and in that case, upon the written request of the holders of one-fourth part of the bonds which might at

Opinion of the Court.

the time be outstanding and unpaid, it should be the duty of the parties of the second part, their survivors or assigns, to enter upon and take possession of the premises of the party of the first part, their successors in trust and assigns, or they might at their discretion, upon the written request of the holders of one-fourth of the bonds then unpaid, cause the premises and property to be sold at public auction in Butter City, Montana, or in the city of Boston, Massachusetts, as the parties of the second part, their successors or assigns, might deem best, first giving thirty days' notice of the time and place and terms of sale by publishing the same once a week for three weeks successively in one of the principal newspapers for the time being in Boston, Massachusetts, and Butte City, Montana, and upon such sale to execute to the purchaser or purchasers thereof a good and sufficient deed or deeds of conveyance in fee simple for the same which should be a bar against the said Bell Silver and Copper Mining Company, party of the first part, its successors and assigns, and all other persons claiming under it or them, of all right, interest, or claim in and to the premises and property and all parts thereof.

And it was expressly agreed by the indenture in question that the parties of the second part, their successors and assigns, or any persons in their behalf, might purchase at any sale thus made or made by order of the court, under the laws of Montana, and that no other person should be answerable for the application of the purchase money, and that the trustees should, after deducting from the proceeds of such sale the costs and expenses thereof, and of managing the property, and enough to indemnify and save themselves harmless from and against all liability arising from the trust and for their own compensation, apply so much of the proceeds of the premises and property as might be necessary for the payment of the principal and interest of the bonds unpaid, whether matured or not, and restore the residue to the party of the first part, it being expressly understood and agreed that in no case should any claim or advantage be taken of any valuation or appraisement, redemption or extension, by the party of the

Opinion of the Court.

first part, its successors or assigns, nor any process be obtained or applied for by it or them to prevent such entry or sale and conveyance.

The agreed statement of facts further showed, aside from other things, that thereafter, on the twenty-fourth day of June, 1885, one Harriet M. Pitman, being then the owner of thirty-five of the bonds mentioned therein, which had been due more than thirty days, wrote to Wells and Tyndale a letter directing them in their discretion to proceed and sell the premises upon the terms described in the instrument, and thereafter, on the fourteenth day of July, 1885, the bonds being past due and unpaid, Samuel Wells and Theodore H. Tyndale prepared and published a notice of sale, the substance of which, as to time, was published in the Boston Traveller and the Butte Miner, papers of general circulation in the cities. and vicinities respectively where they were published.

And in pursuance of such notice on September 2, 1885, Wells and Tyndale offered for sale to the highest bidder the property described in the notice, when the same was struck off to the holders of the bonds in the mortgages mentioned for the sum of forty-five thousand dollars, they being then and there the highest and best bidders, and thereafter on the twelfth of October, 1885, Wells and Tyndale made and delivered to the plaintiffs, the purchasers at the sale, a deed of the premises described.

This deed is the source of the title of the plaintiff and the ground upon which their present action rests for recovery.

When the case was pending in the Supreme Court of the Territory it was objected that the deed was void upon several grounds; one, that the notice of sale was not in conformity with the requirements of the contract; second, that the description of the property was insufficient in law; and, third, that the power and authority under which the mortgagees and trustees executed the deed was void under section 371 of the Revised Statutes of Montana. These several objections were considered at length by the Supreme Court of the Territory and held to be untenable.

By the first objection was meant, though not happily ex

Opinion of the Court.

pressed, that the notice of sale was not sufficient in the length of time for which it was given. The instrument provides for "thirty days' notice of the time and place and terms of such sale, by publishing the same once a week for three weeks successively, in one of the principal newspapers for the time being in Boston, Massachusetts, and Butte City, Montana." The notice of sale, in fact, was published on the 15th, 22d, and 29th of July, 1885, in the Boston Traveller, and in the Butte Daily Miner on the 21st of July, and each succeeding day, including the 11th of August, 1885, and the sale took place on the 2d day of the following September. Between the 15th of July, the date of the first publication in the Boston Traveller, and the 2d of September more than thirty days elapsed, and between the 21st of July, the date of the first publication in the Butte Daily Miner, and the 2d day of September was also more than thirty days, and the publication in each paper was once a week for three weeks successively. It is contended that unless the last notice in each of the papers preceded the sale by thirty days it was insufficient. This position was held untenable by the Supreme Court of the Territory, and, we think, correctly. It is sufficient that the notice of sale was published in each of the papers for three weeks, and that the notice preceded the sale thirty days. The first publication was notice, as the Supreme Court of the Territory observed, as much as the second or last. Leffler v. Armstrong, 4 Iowa, 482, 485. The second objection is sufficiently answered by the fact that the description in the notice of sale is a transcript of that contained in the mortgage, and if it is defective in any respect in the description of the personalty it is sufficient that it is complete in the description of the real property, for the recovery of which the action is brought. The third objection was that the power under which the trustees executed the deed was void under section 371 of the Revised Statutes of Montana. This objection requires further consideration. The statute declares that a mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale.