Sansberry v. Hughes

• Decision Date: 01 November 1910
• Docket Number: No. 21,765.,21,765.
• Citation: 92 N.E. 783,174 Ind. 638
• Parties: SANSBERRY et al. v. HUGHES.
• Court: Indiana Supreme Court

174 Ind. 638

92 N.E. 783

SANSBERRY et al.

v.HUGHES.

No. 21,765.

Supreme Court of Indiana.

Nov. 1, 1910.

Appeal from Circuit Court, Madison County; C. M. Greenlee, Judge.

Action by John M. Hughes against James W. Sansberry and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Kittinger & Diven, for appellants. James A. May and Gavin & Davis, for appellee.

HADLEY, J.

Suit by appellee to quiet his title to the lands described in the complaint. The pleadings set up the following facts: Appellant, on February 12, 1900, bought the land in question at a sale thereof by the treasurer of Madison county for delinquent taxes. There was no redemption from the sale. Appellant held his certificate of sale without making any return thereof to the auditor, and without making any demand, or receiving any deed thereon until February 26, 1906. These facts present the only question involved in this appeal, namely, was appellant's right to a deed, six years after the sale, barred by limitation?

Three years after the purchase of the land by appellant, to wit, on March 9, 1903, an act was approved containing the following provision: “Sec. 3. In all cases where lands have been or may hereafter be sold for delinquent taxes, penalty, interest and costs and a certificate of purchase has been or may hereafter be issued, as is now provided by law, it is hereby made the duty of such purchaser, his heirs or assigns, to cause a deed to be executed and placed on record in the proper county within four years from the date of said sale. Provided, that on failure of said purchaser, his heirs or assigns so to do, then and in that case the amount due such purchaser shall cease to be a lien on said lands so purchased, as herein provided and as is now provided by law.” Laws 1903, c. 132; section 10,359, Burns' Ann. St. 1908.

Appellant urges that his case does not come within the operation of the statute, because at the time of his purchase there was no such statute, and no limitation to his right to a deed upon failure of the owner to redeem; his insistence being that the certificate of purchase vested in him the right to the perpetual lien of the state until the tax was actually paid by the debtor, and which lien was transferred to him by the state with all the rights incident thereto under the law as it existed at the time of the transfer. In other words, he claims that an abridgement of his time for taking out a deed upon his certificate of purchase was an impairment of his contractual rights in violation of the state and federal Constitutions.

Appellant does not make the proper distinction between rights and remedies. With respect to substantive rights, conferred by law, or acquired by contract, there is no doubt of constitutional protection without modification or change. It is otherwise with a mere remedy. A remedy is nothing more than the means provided by law for the enforcement of rights, and is not of itself a right except, in so far as, when there exists but a single remedy for the enforcement of a vested right, such remedy cannot be wholly taken away, without providing some other reasonably convenient and efficient means of enforcement, without violating the Constitution, since a withdrawal of all legal means for the enforcement of a right is equivalent to a subversion of the right itself. But, as pertaining to a mere remedy, there exists no doubt of legislative power to make such changes therein as to it seems fit, if in so doing it preserves or provides a reasonable means and opportunity for full enjoyment of the right. Pritchard v. Spencer, 2 Ind. 486;Dale v. Frisbie, 59 Ind. 530;Flinn v. Parsons, 60 Ind. 573, 576;Smith v. Bryan, 74 Ind. 515;Board v. Center Tp., 143 Ind. 391, 403, 42 N. E. 808;Kepler v. Rinehart, 162 Ind. 504, 70 N. E. 806; Cooley's Const. Lim. 346.

A statute of limitations is peculiarly within the operation of the rule, since it cannot, in any ordinary sense, be said to impair the obligation of a contract. Hence it is firmly settled that the statute in force at the time suit is brought must govern, even though it shortens or lengthens the limitation for enforcement of the contract. Webb v. Moore, 25 Ind. 4;Jones v. Hopkins, 26 Ind. 450;Dowell v. Talbot Paving Co., 138 Ind. 675, 688, 38 N. E. 389;State v. Swope, 7 Ind. 91.

In the first two cases cited, supra, it was held, where school fund mortgages were taken out under a statute requiring the auditor to give 60 days' notice of sales for the nonpayment of interest, or principal,...