Le Sage v. Switzer

• Decision Date: 03 December 1935
• Docket Number: 8149.
• Citation: 182 S.E. 797,116 W.Va. 657
• Parties: LE SAGE et al. v. SWITZER et al.
• Court: West Virginia Supreme Court

182 S.E. 797

116 W.Va. 657

LE SAGE et al. v. SWITZER et al.

No. 8149.

Supreme Court of Appeals of West Virginia.

December 3, 1935

Submitted November 5, 1935.

Syllabus by the Court.

Acts 1921, c. 65, amended and re-enacted Code 1931, 55-2-5 infringes the Constitution of the United States, art. 1, § 10, and the Constitution of West Virginia, art. 3, § 4 (which forbid the passage of a state law impairing the obligation of contracts), so far as the act, after a specified period would invalidate material lawful rights incident to a deed of trust executed prior to the passage of the act.

Appeal from Circuit Court, Cabell County.

Action by Mary E. Le Sage and others against Rufus Switzer, trustee and others. From a decree dismissing the bill, plaintiffs appeal.

Affirmed.

Peyton Winters & Hereford, of Huntington, for appellants.

G. M. McLaughlin and Walter M. Parker, both of Huntington, for appellees.

HATCHER Judge.

Sale of property under a deed of trust executed by Mary E. Le Sage, Anna H. Le Sage, and their respective husbands (hereinafter referred to as plaintiffs) in 1909 to secure a note was not attempted until 1934. This suit was brought by the plaintiffs to enjoin the sale on the sole ground that all rights under the deed had been extinguished by Acts 1921, c. 65, amended and re-enacted in Code 1931, 55-2-5. The circuit court dismissed the bill, and the plaintiffs appealed.

The part of the act of 1921 pertinent here follows: "No lien, reserved on the face of any conveyance of real estate, or lien created by any deed of trust or mortgage on real estate, shall be valid or binding as a lien on such real estate, after the expiration of twenty years from the date on which the debt or obligation secured thereby becomes due; and the provisions of this act shall apply, with like effect, to every such lien now existing, as well as to every such lien hereafter reserved or created."

As amended and re-enacted in 1931, the act provided that the limitation of twenty years should run from the original due date of the debt secured, and that no extension or renewal of the debt should enable the lien to survive the limitation.

It seems worthwhile to preface this discussion with a brief statement of the rationale of ordinary statutes of limitations. It is hornbook law that a state "may organize its judicial tribunals according to its notions of policy, and may prescribe the time within which suits shall be litigated in its courts." 17 R.C.L., subject Limitation of Actions, § 7. The ordinary statute of limitations does not qualify or extinguish directly a single substantive right arising from a contract, but merely withdraws from the parties, after a specified period, the privilege of using the courts to enforce the contract. 17 R.C. L., supra, § 10; Cooley, Const. Limitations (8th Ed.) p. 760 et seq.; Black, Const. Prohibitions, § 150. After the statute has run against a debt, a creditor remains entitled to use any lawful means available for collecting his debt which does not involve court action. Williston on Contracts, § 2002; Minor on Real Property (2d Ed.) § 611; Roots v. Salt Co., 27 W.Va. 483, 494; Hull's Adm'r v. Hull's Heirs, 35 W.Va. 155, 165, 13 S.E. 49, 29 Am.St.Rep. 800; Evans v. Johnson, 39 W.Va. 299, 19 S.E. 623, 23 L.R.A. 737, 45 Am.St.Rep. 912; Morgan v. Coal Co., 97 W.Va. 83, 97, 124 S.E. 591. If secured by a deed of trust, he may still have the trust enforced, since sale by the trustee (under the deed) requires no assistance from the courts. Goldfrank v. Young, 64 Tex. 432; Menzel v. Hinton, 132 N.C. 660, 44 S.E. 385, 95 Am.St.Rep. 647; Booker v. Armstrong, 93 Mo. 49, 4 S.W. 727; Grant v. Burr, 54 Cal. 298; Criss v. Criss, 28 W.Va. 388, 396. There is no controversy over these abstractions. Plaintiff's brief uses them as "historic background" to emphasize the innovations on limitation statutes contained in the following provisions of the act of 1921: "No lien * * * shall be valid * * * after the expiration of twenty years, * * * and the provisions of this act shall apply * * * to every such lien now existing." Thus, instead of the limitation relating to court action on liens as other statutes had done, this act proposed to invalidate the liens themselves at the termination of the specified period. Instead of being prospective as ordinary statutes are, this act proposed to be retroactive. So far as the act is prospective only, there is no challenge. So far as it would be retroactive, it is confronted by the following inhibition of the Constitution of the United States, art. 1, § 10: "No State shall * * * pass any * * * Law impairing the Obligation of Contracts." The act is also confronted by a like inhibition in the Constitution of West Virginia, art. 3, § 4.

We have found no clearer conception of the purpose of this inhibition than that expressed by Associate Justice Trimble in Ogden v. Saunders, 12 Wheat. 213, 327, 6 L.Ed. 606, as follows: "The great principle intended to be established by the constitution, was the inviolability of the obligation of contracts, as the obligation existed and was recognised by the laws in force at the time the contracts were made. It furnished to the legislatures of the states a simple and obvious rule of justice, which, * * * whilst it leaves them at full liberty to legislate upon the subject of all future contracts, and assign to them either no obligation, or such qualified obligation as, in their opinion, may consist with sound policy, and the good of the people; it prohibits them from retrospecting upon existing obligations, upon any pretext whatever." That conception represented the minority view at that time, but within a generation it became the accepted doctrine of the court. See Bronson v. Kinzie, 1 How. 311, 319, 320, 11 L.Ed. 143; McCracken v. Hayward, 2 How. 608, 612, 613, 11. L.Ed. 397; Von Hoffman v. Quincy, 4 Wall. 535, 550, 18 L.Ed. 403; Seibert v. Lewis, 122 U.S. 284, 294, 7 S.Ct. 1190, 30 L.Ed. 1161; McGahey v. Virginia, 135 U.S. 662, 685, 693, 10 S.Ct. 972, 34 L.Ed. 304.

In 1909, when the instant deed of trust was executed, there was no statutory limitation on the period of its enforcement, though at that time the law would indulge a rebuttable presumption that a debt secured by a deed of trust was paid, after the expiration of twenty years. Criss v. Criss, supra, 28 W.Va. 388, 403, 404. The law, as it was then, entered into the proposal of plaintiffs to borrow the money as well as into the acceptance thereof by the creditor. The minds of the parties met under that law. It became a component part of the contract. The creditor is entitled to have the contract enforced according to the law of the contract. This is a fundamental rule of the common law and is recognized in West Virginia as well as by the federal authorities. "The law at the time of the contract is part of it." State v. Nutter, 44 W.Va. 385, 30 S.E. 67. Accord: Carleton v. R. Co., 106 W.Va. 126, 133, 145 S.E. 42; State v. Ins. Co., 114 W.Va. 109, 170 S.E. 909, 91 A.L.R. 1482; Huntington Corporation v. City of Huntington (W.Va.) 177 S.E. 290. A subsequent law, such as that of 1921, limiting the life of a deed of trust, would patently change (impair) the terms of the deed of trust herein, and therefore would violate the Constitution. Robinson v. Magee, 9 Cal. 81, 70 Am.Dec. 638; McCracken v. Moody, 33 Ark. 81. The two cases just cited do not relate to statutes closely analogous to the act of 1921, but they, as well as Bronson v. Kinzie, supra, illustrate the judicial view of statutes which seriously effect substantial contract rights. The Bronson Case involved in Illinois act forbidding a foreclosure sale of prior mortgaged property unless two-thirds of its appraised value was bid, and extending the mortgagor's period of redemption for twelve months after the sale. The Supreme Court declared the act to be unconstitutional because it would have modified the subsisting legal rights of the parties to the mortgaged contract, saying: "When this contract was made, no statute had been passed by the state changing the rules of law or equity in relation to a contract of this kind. * * * And it must therefore, be governed, and the rights of the parties under it measured, by the rules above stated. They were the laws of Illinois at the time; and, therefore, entered into the contract, and formed a part of it, without any express stipulation to that effect in the deed. * * * Any subsequent law, impairing the rights thus acquired, impairs the obligations which the contract imposed, * * * and is prohibited by the Constitution."

Further illustration is afforded by our own decision in Staud v Sill, 114 W.Va. 208, 212, 171 S.E. 428. That case involved consideration of chapter 34, Acts Regular Session 1933, which required a trustee to obtain judicial confirmation of a sale under a trust deed. The act was held to lessen "in some degree" the value of the creditor's right under the deed of trust and thereby to impair the obligation of his contract. A loan secured by a satisfactory lien on real estate for an unlimited period (as in the instant suit),...