Gloucester Realty Corp. v. Guthrie

• Citation: 30 S.E.2d 686,182 Va. 869
• Court: Supreme Court of Virginia
• Decision Date: 22 June 1944
• Parties: GLOUCESTER REALTY CORPORATION et al. v. GUTHRIE.

30 S.E.2d 686

182 Va. 869

GLOUCESTER REALTY CORPORATION et al.

v.GUTHRIE.

Supreme Court of Appeals of Virginia.

June 22, 1944.

Appeal from Circuit Court, Gloucester County; J. Douglas Mitchell, Judge.

Suit in equity by Clinton W. Guthrie against Gloucester Realty Corporation and others to set aside a trustee's sale of property. From a decree setting aside the sale after defendants' demurrer was overruled, defendants appeal.

Reversed, and final decree dismissing bill.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Catesby G. Jones, of Gloucester, and W. M. Minter, of Mathews, for appellants.

Charles S. Smith, Jr., of Saluda, for appellee.

GREGORY, Justice.

On November 30, 1926, Thomas Guthrie and several others executed a deed of trust to George P. DeHardit, trustee, conveying their respective tracts of land located in Gloucester county, for the purpose of securing the payment of certain obligations. Later Thomas Guthrie died intestate, survived by four children. After his death default was made in the payment of the obligations secured in the deed of trust, and the trustee therein sold the land formerly owned by Thomas Guthrie at public auction on May 16, 1942. At the sale the Gloucester Realty Corporation became the purchaser.

Clinton W. Guthrie, the appellee, who had inherited a one-fourth undivided interest in the property, and who had agreed to purchase the other interests in the property formerly owned by Thomas Guthrie, brought a suit in equity to set aside the trustee's sale of the property, upon the sole ground that the sale had not been advertised once a week for four successive weeks in a newspaper as required by the 1940 amendment of Code, sec. 5167 (Michie), which amendment was in force and effect at the time of the sale but not at the time the deed was made. At the time the deed was made in 1926, section 5167 did not require a newspaper advertisement. It only required such reasonable advertisement as the trustee might elect in the absence of some other method prescribed in the deed.

Code, sec. 5167, as it existed in 1926, Arts. 1926, c. 324, was expressly referred to, incorporated in and made a part of the deed of trust. Its provisions thereby became a material portion of the contract between the parties.

The defendants in the court below demurred to the bill of complaint, upon the ground that the 1940 amendment to section 5167 was inapplicable, for the reason that the deed of trust had been executed in November, 1926, many years prior to the effective date of the amendment, and that the deed embodied an agreed method of advertisement in event of sale.

Upon the hearing on the demurrer the chancellor at first sustained it and dismissed the bill. Later he reconsidered his decision, reversed it, and overruled the demurrer. By the decree the sale was set aside and declared invalid for the reason that it had not been advertised in a newspaper as required by the 1940 amendment to section 5167.

The determinative question is whether the sale should have been conducted by the trustee in accordance with the terms of the deed of trust, which adopted the method of advertisement provided in section 5167 as it existed at the time the deed of trust was executed in November, 1926, or should have been conducted in accordance with the terms of the 1940 amendment, which provides a different method of advertisement.

The deed of trust, as we have seen, provided that in case of sale it should be made under the provisions of section 5167 of the Code, and at that time subsection 6 of that section provided that, in the event of default, the sale should be made, unless otherwise provided in the deed, "upon such terms and conditions as the trustee may deem best, after first advertising the time, place and terms of sale in such manner as the deed may provide, or, if none be provided, then in such reasonable manner as the trustee may elect, no notice to the grantor or his successor in title being required." (Italics added.)

The 1940 amendment which the chancellor below applied provides that in event of default the trustee shall sell the property at auction "upon such terms and conditions as the trustee may deem best, after first advertising the time, place and terms of sale in such manner as the deed may provide, or, if none be provided, after first advertising the time, place and terms of sale once a week for four successive weeks in a newspaper published or having general circulation in the county * * *." (Italics added.)

The legislature, in the enactment of the amendment, did not employ express language making it apply to deeds of trust made before its effective date. The wordsused are not those usually employed when the legislature intends an enactment to have a retrospective effect. It was not expressly made applicable to deeds of trust "heretofore and hereafter made", as is usual in retrospective statutes. The absence of apt language making the amendment apply to those instruments executed prior to its effective date rather clearly demonstrates that it was not the intent of the legislature that it should apply to such prior instruments. "It is reasonable to conclude that the failure to express an intention to make a statute retroactive evidences a lack of such intention." Ferguson v. Ferguson, 169 Va. 77, at page 87, 192 S.E. 774, 777.

It is elementary that retrospective statutes affecting past transactions are not generally favored by the courts. A settled rule of construction is that they are not to be construed retrospectively unless plainly so intended. See Lile's Notes on Statutes, page 6. There is a presumption that statutes operate prospectively. Digest of Va. and W. Va. Reports, Vol. 2, p. 717. However, the rule is somewhat relaxed in cases of statutes classified as remedial, or where they only affect questions of procedure. "Remedial statutes which neither create new rights nor...