James v. Chapman

• Decision Date: 09 June 1936
• Docket Number: 1955
• Citation: 58 P.2d 439,50 Wyo. 210
• Parties: JAMES v. CHAPMAN, ET AL
• Court: Wyoming Supreme Court

58 P.2d 439

50 Wyo. 210

JAMES v. CHAPMAN, ET AL

No. 1955

Supreme Court of Wyoming

June 9, 1936

APPEAL from the District Court, Albany County; V. J. TIDBALL, Judge.

Action by Anna D. James against Clyde Chapman and others. From an adverse judgment, defendants appeal.

Judgment reversed.

For the appellants and defendants, there was a brief by J. R Sullivan and G. R. McConnell of Laramie and oral argument by Messrs. Sullivan and McConnell.

The question involved is whether Chapter 73, Section 64, Laws 1931, changing the publication period in mortgage foreclosures from six to four weeks applies to mortgages executed before its passage and foreclosed after its enactment. Their contention is that the statute applied to the foreclosure of mortgages executed before its passage. 12 C. J. Sec. 732, page 1071. The change merely affects the remedy. James v. Stull, 9 Barb. (N. Y.) 482; State v. Court, (S. D.) 249 N.W. 631; 25 R. C. L 792; Webb v. Moore, 25 Ind. 4; Hopkins v Jones, 22 Ind. 310; Atkinson v. Duffy, 16 Minn. 45; Orvik v. Casselman, 105 N.W. 1105; 59 C. J. 1188, 1191; Sansberry v. Hughes, 174 Ind. 638, 92 N.E. 738; Beaumont Syndicate v. Broussard, 64 S.W.2d 993; Hanson v. Bank of Omaha, 262 N.W. 228. If it were not the intention of the legislature to make the section applicable to such mortgages, should not the statute itself affirmatively disclose that fact? And, is there any statute manifesting a contrary intention? The cases above cited disclose a difference between statutes affecting substantial rights and those affecting procedure only. This distinction is manifested in the text of 59 C. J. 1173, Section 100. Counsel for appellee direct attention to Section 180, Chapter 73, Laws 1931 phrased as a general saving clause. But in considering said statute, we should keep in mind the provisions of Section 112-104, R. S., dealing with pending actions, prosecutions or proceedings, civil or criminal, relating to the subject of remedy. The meaning of the word "manner," as used in the statute, must be determined in the light of the contract or statute in which it is used. Melschermer v. McKnight, (Miss.) 46 So. 827; U.S. v. Norris, F. Cas. No. 15,815; Porter v. Brook, (Okla.) 94 P. 645; Bankers Life Insurance Company v. Robbins, (Nebr.) 80 N.W. 484; Grand Junction Sugar Company v. Fellows, (Colo.) 220 P. 992; Duty v. Railway Company, (W. Va.) 73 S.E. 331. The purpose of saving clauses is to preserve pre-existing rights. 59 C. J. 1192. The only logical interpretation of the Revised Statutes, Section 112-104, is that it applies to judicial proceedings so far as remedies are concerned, and foreclosure by advertisement is not a judicial proceeding. Herbert v. Bulte, (Mich.) 4 N.W. 215; Dwight v. Phillips, (N. Y.) 48 Barb. 116, 119. That statute in question is remedial in its character and does not change any existing rights. It is therefore applicable to proceedings taken after its enactment, though relating to acts done previously thereto.

For the plaintiff and respondent, there was a brief and also oral argument by Tom H. Barratt of Laramie.

The statute which cuts down the period of advertising for the foreclosing of mortgages from six weeks to four weeks is an impairment of contractual rights, duties and obligations and if operating in the case at bar is clearly unconstitutional and void. The following authorities have a direct bearing on the subject: Bronson v. Kinsey, 1 How. 311; McCracken v. Hayward, 20 How. 608; Grantley's Lessee v. Ewing, 3 How. 707; Howard v. Bugbee, 24 H. 461; Gunn v. Barry, 15 Wall. 610; Walker v. Whitehead, 16 Wall. 314; Edwards v. Kearsey, 96 U.S. 595; Barnitz v. Beaverly, 163 U.S. 118; Bradley v. Lightcap, 195 U.S. 1. The remedy is subject to legislative modification, the mortgage contract is not. Cargill v. Powers, 1 Mich. 369. Six weeks publication being a condition precedent to a valid sale, when this mortgage was executed, the reduction of the publication term to four weeks, cuts off two weeks of the mortgagor's right of redemption, which was a part of her contract when she executed the mortgage. Section 180 of Chapter 73, Laws 1931. A general saving clause had an important bearing on the question. It is well settled that the right of redemption under a power in a mortgage is governed by the law in force at the time the mortgage was made. Skeels v. Blanchard, 81 A. 913; Lennell v. Lyford, 72 Me. 280; Company v. Banking Company, 113 F. 958; Smith v. Green, 41 F. 455; Hynes v. Tredway, (Cal.) 66 P. 313; Green v. Thornton, (Cal.) 96 P. 382; Pawtucket v. Landers, 47 P. 621; Breman Mining Company v. Breman, (N. M.) 79 P. 481; Wiltsie on Mortgage Foreclosure, page 1325. The equity of redemption is a distinct estate. Clark v. Rayburn, 8 Wall. 318. The cases cited in appellants' brief do not support their contentions. The legislature does not possess constitutional power to change the period of advertising necessary to foreclose existing mortgage obligations. 59 C. J. 1171; 41 C. J. 925 and cases cited. Fisher v. Green, 31 N.E. 172; Gulush v. Meserve, (Colo.) 208 P. 348; Richardson v. Fitzgerald, 109 N.W. 866. Section 180 of Chapter 73 of the Laws of 1931 specifically provides that Section 71-207, R. S. 1931 shall not affect the existing mortgage obligations. The statute first cited appears in the revision as Section 112-206, R. S. 1931, and when read in connection with the statute reducing the publication period clearly shows an intention to save a mortgage of the kind in question in this case from the operation of Section 64, Chapter 73, Laws 1931. Muller v. McCann, 151 P. 621; Edwards v. Kearsey, 96 U.S. 595; Purcell v. Barnett, 30 Okla. 605. Appellant contends that the destruction of two weeks of time within which the mortgagor could save his property is just mere "manner"; that it is only "procedure"; that it is lightly to be treated and flippantly alluded to as "remedial." Remedial of what? It is an act of destruction, of impairment, of obliteration, as to two weeks time, and the Supreme Court of the United States has so decided in the cases hereinafter cited. The Supreme Court of Nevada in State v. Eureka Company, 8 Nev. 15 held that the word "manner," in the statutes under consideration, included the element of time. The word was construed to include time in U.S. v. Morris, F. Case 15,815, also in Bankers Life Ins. Co. v. Robbins, 59 Neb. 170; Harris v. Doherty, 119 Mass. 142. The manner of doing a thing and the time of doing it are distinct things, but the manner may embrace time, if such was the intention of the legislature. Importers v. Brook, (Okla.) 97 P. 645; State v. McClure, (Wis.) 64 N.W. 992. Appellants are resorting to a subtle and forced construction of the meaning of the statute, which is not permissible. Board v. Blakely, 20 Wyo. 259. In foreclosing under a statute, every requirement must be strictly complied with. Wiltsie on Mortgage Foreclosure, 4th Ed., Vol. 2, page 1078. Since pre-existing mortgage obligations were especially excepted from the operation of Section 71-207, R. S. 1931, by Section 180, Chapter 73, Laws 1931, the words, "statutes, * * * hereafter in force," as the same appear in the mortgage obligation, have no application to the case at bar. We will not go into the above proposition at length. We feel that we have shown that Section 64, Chapter 73, Laws 1931, reducing the publication period in mortgage foreclosures from six to four weeks, is a substantial impairment of contractual rights, duties, and obligations, and clearly unconstitutional and void, if it should operate in the case at bar. Section 180, Chapter 73 expressly prohibits a retrospective operation of said statute. Section 4627, C. S. 1920, in effect when the mortgage was executed, required six weeks publication. The redemption period was six months after date of sale. The reduction of the publication period reduces the redemption period, thus destroying rights under the law, in effect when the law was made.

Ray E. Lee, Attorney General, filed the following memorandum for consideration in reviewing the judgment of the court below:

"The State of Wyoming is not a party to the above action, and has not entered any appearance therein. However, as Attorney General of the State of Wyoming, I have been informed by the Commissioner of Public Lands that something more than two hundred mortgages have been foreclosed by special attorneys representing the Farm Loan Board, such mortgages being the property of the State of Wyoming, and that the procedure followed in such foreclosures was, in practically every case, a foreclosure by advertising, and the period of advertising was four weeks, as is provided by the 1931 statute involved in this proceeding. Therefore, as Attorney General of the State of Wyoming, I am taking the liberty of handing the court the following memorandum of authorities, most of which have not been cited in the brief of counsel seeking to sustain the procedure under the 1931 law. Webb v. Moore, 25 Ind. 4; Cargill v. Power, I Michigan 369; State Savings Bank v. Mathews, 81 N.W. 918; Butler v. Palmer, I Hill (N. Y.) 324; Anderson v. Anderson, 29 N.E. 35; Home Building and Loan Association v. Blaisdell, 78 L.Ed. 413, 88 A. L. R. 1481, 290 U.S. 398; Des Moines Joint Stock Land Bank v. Nordholm, 253 N.W. 701; Mortgage and Contract Company v. Sage et al., 266 Mich. 165, 253 N.W. 255; City of Pasadena v. Chamberlain, 36 P.2d 387; Harris v. Little Red River Levee District No. 2, 69 S.W.2d 877; Worthen Company v. Delinquent Lands, 75 S.W.2d 62; 12 Corpus Juris 1077."

BURGESS, District Judge. KIMBALL, Ch. J., and BLUME, J., concur.

OPINION

BURGESS, District Judge.

In 1928 Anna D. James gave Clyde Chapman and Mary E. Chapman a real estate mortgage containing a power of sale authorizing the mortgagees, in the...