Hillebert v. Porter
| Decision Date | 22 December 1881 |
| Parties | JAMES M. HILLEBERT <I>vs.</I> ALVA J. PORTER. |
| Court | Minnesota Supreme Court |
Lewis & Leslie, for appellant.
Chas. R. Davis and Sumner Ladd, for respondent.
In 1876, defendant executed to plaintiff a mortgage upon real estate, containing the usual power of sale, and bearing interest at the rate of 12 per cent. per annum. In 1879, plaintiff duly foreclosed the mortgage under the power, and bid in the property at the sale. Within the year allowed the mortgagor to redeem defendant, for the purpose of redeeming, paid to the sheriff the amount bid at the sale, with interest at the rate of 7 per cent. per annum, and received from the sheriff, and caused to be duly recorded, the usual certificate of redemption. At the time the mortgage was executed, the rate of interest required by the statute to be paid on such redemption was 7 per cent. Laws 1878, c. 53, § 13, (Gen. St. 1878, c. 81, § 13,) provided that on redemption from such sales the rate of interest to be paid, if the mortgage contained a distinct rate of interest more than 7 per cent., should be the rate specified in the mortgage, not to exceed 10 per cent. per annum. In terms the statute applies as well to mortgages executed before, as to those executed after its passage.
Is the statute constitutional, as applied to sales under powers in prior mortgages, is the only question raised in the case. Speaking of rights of redemption, the court, in Carroll v. Rossiter, 10 Minn. 141, (174,) said: "It has been settled in our state that the rights of parties in this respect are fixed by the laws in force at the time of making the mortgage." It accordingly held that the statute in force when the mortgage was executed controlled as to the time for redemption, and not a subsequent statute enlarging such time. This proposition of the court is only the statement of the rule that, in general, contracts are to be construed, and the rights thereby created are to be determined, by the laws in force at the time and place of executing them. The rule exists because parties are presumed to contract with reference to such laws. The rule has not been questioned in any case in this court involving rights of redemption from sales to satisfy mortgages, though some difficulty has been felt, and perhaps uncertainty created, in its application to particular cases.
Stone v. Bassett, 4 Minn. 215, (298,) was upon a sale under a decree in an action to foreclose, and the court held that the statute regulating redemption from sales under decrees, in force at the time of the sale, controlled the right of redemption. From the reasoning in the opinion the decision seems to have been on the ground that the mortgagee did not rely upon and follow his contract remedy; and, having chosen to seek a judicial remedy, he must take that remedy as it then existed. The distinction in respect to rights of redemption between sales under decrees and sales under powers, indicated in that case, was more fully and clearly made by the opinions in Heyward v. Judd, 4 Minn. 375, (483.) Whether the court was correct in making that distinction, it is unnecessary for us in this case to determine. All the judges were of opinion that a statute passed after a mortgage is executed cannot change the character of the estate which shall pass by a sale under the power. Two of them distinctly and forcibly expressed the opinion that, in respect to sales under powers, a statute subsequent to the execution of the mortgage, enlarging the time for redemption, would impair the obligation of the contract and be void. The court, however, held — as we think,...
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