
    WILLIAM E. CHANDLER vs. WILLIAM A. COOK, TRUSTEE.
    In Equity —
    No. 3721.
    Where the advertisement of sale of trust-property states the day of' the month correctly, but names a wrong day of the week, and the mistake is corrected in the published notice the day before the sale, a bill in equity to set aside such sale for that irregularity will be dismissed, when it is evident that there was no intention to mislead either the parties or the public, and when neither in fact were misled.
    STATEMENT OP THE CASE.
    The complainant filed his bill to have a sale of certain real estate which had been sold under a power of sale in a trust-deed set aside and declared null and void.
    The deed of trust was executed by one Sidney McFarland to the defendant, William A. Cook, as trustee, to secure the payment of fifty-six promissory notes, each for the sum of twenty-five dollars, with interest, which notes, at the time of the sale of the trust-property, belonged to the estate of one Plowman, deceased. The said deed and notes were all dated on or about the 12th day of October, 1869. Said deed empowered the trustee, upon default made in the payment of any one of said notes, &c., to sell the premises, “ at public auction, upon such terms and conditions, and at such time and place’, and after such public advertisement,” as the trustee in the execution of the trust should “ deem advantageous and proper.”
    The premises were advertised November 27, 1873, to be sold on the 8th of December following. For reasons not shown, no sale was made on the 8th of December, but on the 9th of December the original advertisement, with the following notice attached, appeared in the Republican, a daily newspaper:
    “ The above sale is hereby postponed until Thursday, December 19, 1873, same hour and place.
    de9-TuThS&ds. “LATIMER & CLEARY,
    
      11 Auctioneers.”
    
    
      The sale actually took place ou Friday, December 19,1873. On Thursday, the 18th of December, the above error in the •day of the week was corrected. On that day, as well as on the morning of the sale, the notice of postponement was printed correctly, viz, “Friday, December 19,1873.”
    Evidence as to attendance, and number of bidders, and adequacy of price is conflicting. The defendant, Cook, trustee, in his deed to the purchaser, recites that he advertised the premises “ for more than ten days, and on the day of the sale.”
    The special term in equity made a decree dismissing the bill, and the plaintiff prayed an appeal.
    
      Frank W. Hackett, for plaintiff, argues in his brief as follows :
    The authority of the trustee in this suit to sell, after such public advertisement as he should deem advantageous and proper, extended only to publication of such an advertisement as in itself contained the essential characteristics of a valid and legal notice.
    The medium of publication was left to his sound discretion — > whether by posters, or newspaper advertisement, daily, weekly, morning, or evening — and for such a length of time as his judgment should approve. But he could not neglect the salutary requirements of law as to what the notice itself should contain. No particular form of advertisement is necessary when not prescribed by the deed, (Newman vs. Johnson, 12 Wheat., 570,) but if should reasonably inform the publicas to the time, place, and description of the property. Besides, the notice must be truthful in all material particulars. Burnet vs. Dennison, 5 Johns. Ch., 35. In Fitzpatrick vs. Fitzpatrick, ut sup., the court observed, in setting aside a sale where the notice gave the day but omitted the time of day, that “ such a defect defeats the whole purpose of the notice.”
    The adjournment should have been made on the day and at thqplace of sale. 11 Am. Law Reg., 721, sec., 29. The question of the best time to which postponement should be made was for the trustee himself. Its decision could not be delegated to an agent. Bales vs, Perry, 51 Mo., 449.
    
      But it appears that the sale was postponed by the advertisement of December 9, which reads :
    
      " The above sale is hereby postponed,” &c.
    There is no evidence that the trustee was in attendance December 8. In fact, if he had been, he would have said so in his answer. Besides, the postponement does mot purport to be the act of the trustee at all, but of the auctioneers.. If the postponement was in fact made by the trustee before the publication of the advertisement, then the advertisement was incorrect in stating that the sale “is hereby postponed.” Such a statement might induce a would-bé purchaser to stay away from the sale, for the reason that he would not venture to risk a title upon a trustee’s sale fixed by the auctioneer, and not by the trustee himself. On the other hand, if the postponement was actually made by the advertisement, it was either void, as not being the act of the trustee himself, or the advertisement was fatally defective in not setting forth a. postponement determined upon by the trustee or by his-authority.
    If there was a postponement by the trustee on the ground, it-must have been till Friday, December 19; otherwise the day of actual sale and the day of postponement would have differed.
    But a published notice of postponement must conform to the actual postponement made on the ground. Richards vs. Holmes, 10 How., 143; Miller vs. Hull, 4 Denio, 104. The onus of proving that the advertisement and the day of sale itself conformed to the day established by actual postponement, rests upon defendants. Gibson vs. Jones, 5 Leigh, 370.
    
      William A. Cook for defendant.
   Mr. Justice Glut

announced the decision of the court to* the effect following:

The only question raised by the bill in this case is as to the regularity of the notice of sale. Ho fault is found with the original advertisement, but the notice postponing the sale to the 19th of December, 1873, stated the day of the week to be Thursday instead of Friday. The day of the month was correct, and that was the day of the sale. There is no doubt but the wrong day of the week was inserted by mistake, and without any intention of misleading, and it was discovered and corrected the day before the sale, which actually transpired at the place and on the day of the month advertised. The correction of the notice gave a time certain, so that the public could not be misled.

We are aware of the rule which requires a trustee for sale to act in good faith and with diligent attention in conducting the sale of the property. But the postponement in this case was proper and necessary to bring the property to sale under the most favorable circumstances for realizing its full value. And, in point of fact, there is nothing in the case to show that the sale was not conducted so as to secure this result. We think the decree of the special term should be affirmed and the bill dismissed with costs.

MacArthur, J.,

dissented, and expressed his opinion to be that there was no proof as to the sale having been post* poned by the trustee or by his direction. The notice is in the name of the auctioneers alone, and not by the trustee. Whether the sale shall take place or be advertised again is a matter confided to the discretion of the trustee, and he cannot delegate that power to auctioneers or agents under the special trust and confidence with which he alone is invested. The fact may be that the postponement was authorized and the new advertisement directed by the trustee; but there is nothing in the pleadings or proofs to explain the advertisement of the auctioneers. For this reason, I think there was no valid execution of the power to sell, and that the sale was null and void.  