Davis v. Rupe

• Decision Date: 19 May 1888
• Docket Number: 13,315
• Parties: Davis v. Rupe et al
• Court: Indiana Supreme Court

17 N.E. 163

114 Ind. 588

Davis v. Rupe et al

No. 13,315

Supreme Court of Indiana

May 19, 1888

From the Wayne Circuit Court.

The judgment is reversed, with costs.

H. C Fox and J. F. Robbins, for appellant.

C. H Burchenal, J. L. Rupe, J. F. Kibbey, J. H. Kibbey and T. J Study, for appellees.

OPINION

Mitchell, C. J.

The question for decision in the present case arises upon the following facts: Between the 1st day of January and the 1st day of June, 1880, Elwood Hadley became indebted to divers persons for goods and merchandise sold and delivered. The debts were simple contract debts, not secured by mortgage or other lien upon real estate. In the years 1880 and 1881 judgments were recovered in the Wayne Circuit Court against Hadley upon the above mentioned debts. Subsequently, in pursuance of an order and decree of the Wayne Circuit Court--the decree having been given in an action in which the above mentioned creditors united to set aside an alleged fraudulent conveyance theretofore made of certain real estate owned by the judgment debtor--the sheriff of Wayne county, in the month of June, 1884, sold the real estate described in the decree as the property of Elwood Hadley to John Rupe, as trustee of the creditors at whose suit the decree had been given. No redemption having taken place from the sale so made, the sheriff executed a deed accordingly to the purchaser as trustee in June, 1885. Pending the year for redemption, Robert F. Davis occupied the real estate as tenant of Elwood Hadley, he having leased the same prior to the sale at a stipulated sum by the month, the amount agreed upon as rent being the fair rental value of the premises.

The facts having been found substantially as above stated in an action brought by the trustee against Davis to recover the rent accrued during the year for redemption, the court stated conclusions of law thereon to the effect that the trustee was entitled to recover from the tenant of Hadley two-thirds of the rent so accrued, the wife of Hadley being entitled to the other one-third, she having become owner of an undivided one-third of the premises under the act of March 11th, 1875.

The propriety of the conclusions thus stated depends entirely upon the validity of the act relating to the redemption of lands from sales on execution and decretal orders, in force from and after April 11th, 1881. This act, like the one it superseded (Acts 1879, p. 176), provided that the owner of real estate sold by the sheriff on execution or decretal order, should be entitled to the possession of the land sold for one year after the date of the sale. Section 767, R. S. 1881.

Unlike the earlier act, the later does not provide that the owner or occupant of the land during the time it is subject to redemption shall be liable to the purchaser for the reasonable rents and profits thereof, in case it is not redeemed. It is silent upon that subject.

As has been seen, the debts which formed the basis of the several judgments, for the satisfaction of which the real estate was subsequently ordered to be sold, were contracted by Elwood Hadley in 1880, while the redemption law of 1879 was still in force. The sale was made in 1884, the act of 1881 being then in force. That act declares, in effect, that its provisions shall not apply to any sale made prior to the taking effect thereof; but that all sales made after the passage of the act, and all redemptions therefrom, shall be governed by its provisions.

The learned circuit court proceeded upon the assumption that the provisions of the act of 1879, which, in express terms, rendered the owner or occupant of land sold liable to the purchaser for the reasonable rents and profits, in case the property was not redeemed within the time prescribed, remained operative and in effect in respect to contracts made while it was in force, notwithstanding the provisions of the act of 1881 in relation to sales after the taking effect of that act. The later act, it is said, in so far as it indicates a contrary purpose, by omitting to provide for the recovery of rent by the purchaser at an execution sale, is in conflict with those provisions of the Federal and State Constitutions, respectively, which prohibit the passing of laws impairing the obligation of contracts.

What constitutes the obligation of a contract, in the constitutional sense, has been a fruitful subject upon which much learned discussion may be found in the reported decisions. Generally, the obligation of a contract may be said to be the legally enforceable duty which the obligor is under to perform it. Notwithstanding all that has been said upon the subject, the boundary line distinguishing enactments which affect the remedy merely from those which, by limiting or changing the remedy, impair the obligation of pre-existing contracts, has not been, and, for obvious reasons, can not be, drawn so broadly as to furnish a satisfactory rule for the determination of all cases. "Every case must be determined upon its own circumstances." Von Hoffman v. City of Quincy, 71 U.S. 535, 4 Wall. 535, 18 L.Ed. 403.

Certain general principles have been universally accepted, and whether or not an enactment falls within the constitutional inhibition, is to be determined by the application of those principles to the statute and the contract in question in each case. Thus it is settled that an existing remedy available for, and appropriate to, the enforcement of a contract when and where it was made, is within its obligatory scope. Buser v. Shepard, 107 Ind. 417, 8 N.E. 280; Bryson v. McCrary, 102 Ind. 1, 1 N.E. 55, and cases cited; Gunn v. Barry, 82 U.S. 610, 15 Wall. 610, 21 L.Ed. 212; Edwards v. Kearzey, 96 U.S. 595, 24 L.Ed. 793.

An available remedy for the enforcement of the contract having existed at the time it was made, the obligee may assume that the State will not deprive him of the means of making his contract effectual according to the course of justice in the courts.

A contract having no other sanction than the moral sense of obligation or duty possessed by the persons benefited and equitably bound to perform, might, in many instances, be a delusion, and without force or value. Hence there is embraced in, or adherent to, the obligation of every contract the legal right to enforce performance, according to a mode of procedure appropriate to the subject-matter of the contract. This right to make the contract effectual by legal compulsion is one of the most efficient and essential elements of its obligation, and is as much a subject of protection within the Constitution as is any other feature of the contract. Although the remedy constitutes an essential part of the obligation of a contract, it does not follow that the existing or any other particular form of remedy becomes necessarily a contract right or a subject of the contract, and, therefore, part of its obligation in such sense as to confer a vested right in the remedy, so as to place it beyond the domain of legislative modification or change.

The power of the Legislature to change the remedy, where no substantial right under the contract is affected, is well settled. The prohibited change is such as affects or impairs a contract right, or which substantially deprives a party of adequate means of enforcing his contract. In the language of Sharkey, C. J.: "It is only necessary that there should be an adequate subsisting remedy. * * * If the remedy given be as good as that which was taken away, the obligation of the contract is not thereby impaired." McMillan v. Sprague, 4 How. (5 Miss.) 647; Wade Retroactive Laws, section 203; Baldwin v. City of Newark, 38 N.J.L. 158.

As is said by Poland, C. J., in Richardson v. Cook, 37 Vt. 599: "The Legislature may change and modify remedies, forms of proceedings, and the tribunal itself, as they choose, but they shall not directly, or indirectly, destroy or abolish all remedy whatever, by which the performance of any class of valid, legal contracts may be enforced."

"The rule seems to be that in modes of proceeding and of forms to enforce the contract the Legislature has the control, and may enlarge, limit, or alter them, provided that it does not deny a remedy, or so embarrass it with conditions and restrictions as seriously to impair the value of the right." Tennessee v. Sneed, 96 U.S. 69, 24 L.Ed. 610.

As has often been declared, there can be no vested right in remedies, provided they are not so changed as to be rendered nugatory, and hence it is that whatever belongs to the remedy merely is within the control of the Legislature, subject only to the limitation that an adequate and reasonable mode of enforcing the right must remain, or be provided, which leaves the value of the contract without substantial depreciation or impairment. Lockett v. Usry, 28 Ga. 345; Read v. Frankfort Bank, 23 Me. 318; White v. Hart, 80 U.S. 646, 13 Wall. 646, 20 L.Ed. 685.

Until the means which existed for the enforcement of a contract are, by legislation directly affecting those means, superseded by others materially less efficacious for the enforcement of the contract, there is no impairment of its obligation, even though a new remedy may have been provided which is less convenient or less prompt and speedy than the old. Wolff v. New Orleans, 103 U.S. 358, 26 L.Ed. 395; Penrose v. Erie Canal Co., 56 Pa. 46; Simpson v. City Savings Bank, 56 N.H. 466; Cooley Const. Lim. 349, 350.

In respect to legislative enactments which effect a modification of exemption laws, or laws of an analogous character, in force at the time of the execution of a contract, the rule which obtains is, that unless such enactments result in a substantial encroachment upon the rights of a creditor, by destroying or materially affecting a remedy...