International Bldg. & Loan Ass'n v. Hardy

• Decision Date: 19 April 1894
• Docket Number: (No. 121.)
• Parties: INTERNATIONAL BLDG. & LOAN ASS'N v. HARDY.
• Court: Texas Supreme Court

26 S.W. 497

INTERNATIONAL BLDG. & LOAN ASS'N v. HARDY.

(No. 121.)

Supreme Court of Texas.

April 19, 1894.

Certified questions from court of civil appeals of fourth supreme judicial district.

Trespass to try title by the International Building & Loan Association against William S. Hardy. Heard on certified question.

B. L. Aycock, for appellant. C. A. Keller and Leo Tarleton, for appellee.

STAYTON, C. J.

The question certified and accompanying statement are: "Plaintiff claims title to land in Bexar county under a deed of trust executed by appellee and wife on April 18, 1885; the sale by the trustee having taken place on October 9, 1890, in Bexar county, appellant being the purchaser. The trustee's deed was objected to when offered in evidence on one ground only, viz.: `Because there was no evidence that advertisement was made by posting notices of the time and place of sale, as in sheriffs' sales, in three public places in the county, one of which being the court house door,' — which objection was sustained." Question: "Did the act of March 21, 1889, entitled `An act to prescribe the place and time of sale of all real estate thereafter to be sold under power conferred by any deed of trust or other lien,' have the effect of requiring compliance with its provisions in cases of sales thereafter made under a power, where the contract conferring the power had been executed prior to said act, and provided differently in respect to the sale?" The act referred to requires such sales "to be made in the county in which such real estate is situated, notice shall be given as now required in judicial sales, and such sales shall be made at public vendue between the hours of 10 o'clock a. m., and 4 o'clock p. m., of the first Tuesday in any month." The purpose of that act evidently was to make the law regulating time and place of sale under execution or other judicial process applicable to sales under powers conferred in mortgages, and to require notice of such sales to be given in the mode and for the period prescribed for notice of sales under judicial process. The law in force when the contract was made, as at the time when the sale under the trust deed was made, required that "the time and place of making sale of real estate, in execution, shall be publicly advertised by the officer for at least twenty days successively next before the day of sale, by posting up written or printed notice thereof, at three public places in the county, one of which shall be at the door of the court house of the county." Sayles' Civ. St. art. 2309. The statute, however, gave a defendant the right, upon written request, to have notice of sale given by publication in some newspaper if there was one published in the county, provided this could be had for the compensation fixed by the statute; and such publication was required for three consecutive weeks. Id. 2309a. The act of March 21, 1889, in terms applies to "all sales of real estate which may hereafter be made in this state under powers conferred by any deed of trust or other contract lien," and there can be no reasonable doubt of the intent of the legislature to make it apply to sales under contracts made before its passage, as well as to those afterwards made; and the question arises whether such legislation is violative of any part of the constitution of the United States or of this state. If not, effect must be given to it in all cases coming within its terms.

The constitution of the United States and the constitution of this state deny to the legislature of this state power to enact any law impairing the obligation of contract, and the latter withholds power to enact retroactive laws. The purpose of the parties in making the mortgage contract and in giving power to sell the mortgaged property, in accordance with the terms of the instrument, were twofold. The leading purpose of that contract was to give lien on the property described in it to secure debt due or to become due from one party to the other; and, if the contract had gone no further than to secure this right, there is no doubt that it would have been within the power of the legislature to change the remedy then existing for the enforcement of such a right through the courts in any respect that did not essentially affect the right secured. Notice for a longer period before sale or notice to be given in some manner other than that prescribed by law in force when the contract was made might have been required, or the time and place of sale might have been changed, without violating the right of either party under the contract; for the parties contract with reference to the enforcement of rights through the courts, if this becomes necessary, and they must be understood to contract in view of the fact that the state has power to establish courts, to fix their jurisdiction and also to regulate procedure, and that this cannot be controlled by contracts persons may make. The contract, however, had in view, and by its terms gave and was intended to give to the creditor, a remedy through which it might enforce its right against the mortgaged property without resort to the ordinary remedies given by law, and it will be assumed that the contract which gave that remedy was valid when made. The constitutional provisions which forbid legislation, the effect of which would be to impair the obligation of contracts affecting property or pecuniary rights, are broad, and embrace every such contract, and, in the case stated, the question arises: Is a contract securing to a creditor right to a specific remedy, whereby he may enforce a pecuniary obligation without resort to the courts of the country, subject to such modification and changes as may lawfully be made in the ordinary remedies prescribed by law? We are of opinion that this should be answered in the negative; for, as before said, the contract in the one case secures the right of the parties as to the subject-matter of contract, but looks for remedy to laws existing, or to such laws as may be subsequently enacted, — in fact contract with reference to the known power of the lawmaking department to make such changes in remedial laws as may be deemed beneficial, provided they be not such as impair the obligation of contract, — while, in the other, the very purpose of so much of the contract as secures a remedy the law does not give is to secure the specific remedy contracted for. In one case the specific remedy is the subject of contract, and parties, one or both, thus secure it because deemed more advantageous in enforcement of right than the remedies provided by law; while, in the other, the thing or right secured by contract is that which gives right to some remedy for enforcement of contractual obligation. By reason of the right the remedy operates upon persons or things, and, in the absence of contract for remedy, in such cases, parties subject themselves and property to such remedies as exist at the time the contract is made, and to such as subsequently may lawfully be given by law. That persons may contract for a remedy, lawful in itself but not given by law for enforcement of a right, will not be questioned; but such a contract will not prevent resort to any remedy given by law. If, however, a party desires to resort to a remedy existing only by contract, he must take it in accordance...