Sharber v. Florence

• Decision Date: 20 April 1938
• Docket Number: No. 7336.,7336.
• Parties: SHARBER v. FLORENCE.
• Court: Texas Supreme Court

115 S.W.2d 604

SHARBER v. FLORENCE.

No. 7336.

Supreme Court of Texas.

April 20, 1938.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Suit by J. H. Sharber against R. E. Florence to annul a deed from the sheriff of Cass County to R. E. Florence for 35 acres of land. To review a judgment of the Court of Civil Appeals, 108 S.W.2d 942, affirming a judgment for the defendant, plaintiff brings error.

Judgment of the trial court and the Court of Civil Appeals reversed, and cause remanded to the trial court.

Carney & Carney, of Atlanta, for plaintiff in error.

Ben A. Harper, of Houston, for defendant in error.

SHARP, Justice.

J. H. Sharber brought this suit in the district court of Cass county against R. E. Florence, to annul a deed from the sheriff of Cass county to R. E. Florence for 35 acres of land. The parties herein will be designated as plaintiff and defendant, as they were in the trial court. The trial was to a jury. At the conclusion of plaintiff's testimony, defendant made a motion for peremptory instruction, which was granted; and a verdict was rendered for defendant. Judgment was entered for defendant, and plaintiff appealed to the Court of Civil Appeals at Texarkana, and the judgment of the trial court was affirmed. 108 S.W.2d 942. Because a decision of the case involves the construction of article 2218b note, Vernon's Annotated Texas Civil Statutes, known as H. B. No. 4, Acts 43d Legislature, 2d Called Session, chapter 2, page 2, a writ of error was granted.

The act in question reads as follows:

"Sec. 1. That all sales under any execution or order of sale issued out of any court of this State and all sales under any deed of trust, mortgage or other contract giving or granting any power of sale of real property for debt now advertised to be made on February 6, 1934, are hereby stayed and postponed until the first Tuesday of March, 1934; that no other or further advertisement or notice of any such sale that has been lawfully published or given for sale on February 6, 1934, shall be required for sale under such execution, order of sale or such deed of trust, mortgage or other contract on the first Tuesday in March, 1934. Any and all sales under execution, order of sale or under any deed of trust, mortgage or other contract giving or granting any power of sale of real property for debt, made prior to the first Tuesday in March, 1934, and subsequent to the effective date of this Act shall be and the same is hereby declared void. Provided that this Act shall not apply where the lien sought to be foreclosed was procured or obtained for the purpose of securing in part or whole any indebtedness for money or property procured by misrepresentation, fraud, defalcation or embezzlement. Provided further that if the record owner of such real estate and the holder of such indebtedness agree in writing that such sale shall be made on February 6, 1934, such sale shall be valid and binding. In all such cases the agreement shall be signed by the trustee or other person making such sale and by the record owner of such real estate and shall be acknowledged and filed for record with the trustee's or other person's deed.

"Sec. 2. That the period within which return is required to be made under any such execution or order of sale shall be, and the same is hereby extended for such period as may be necessary to enable the officer making such sale to make due return thereof but such extension shall not extend beyond the first Tuesday in April, 1934.

"Sec. 3. The time during which sales under execution, order of sale, deeds of trust, mortgage or contract shall be suspended or extended by the provisions of this Act shall not be accounted or computed as a part of the period within which suits shall be instituted or sales shall be made."

Plaintiff contends that the Court of Civil Appeals erred in holding valid that part of the act which applies to sales made under executions or orders of sale issued out of any court of this state for debt, advertised for sale to be made on February 6, 1934, and postponed to the first Tuesday in March, 1934. This presents the principal question for decision.

In October, 1933, defendant recovered judgment in the district court of Cass county against plaintiff for the sum of $292.82, together with a foreclosure of the vendor's lien on the land described in the sheriff's deed sought to be canceled. By virtue of an order of sale issued out of the district court on January 8, 1934, the sheriff sold the land on which the vendor's lien held by defendant was foreclosed, and executed a deed therefor to defendant. Notice of the sale of the land was advertised in a newspaper in Cass county, Tex., in the manner and for the length of time required by law, for the first Tuesday in February, 1934, and was postponed until the first Tuesday in March, 1934, in obedience to the terms and provisions of the act above described, which became effective the day before the date set for the sale, February 6, 1934.

In addition to the act involved here, the Legislature passed many other moratorium laws, two of which are described as follows:

Senate Bill No. 3, chapter 16, page 42, General and Special Laws 43d Legislature, Second Called Session, Vernon's Ann.Civ. St. art. 2218b note, which was held invalid in the cases of Travelers' Insurance Co. et al. v. Marshall et al., 124 Tex. 45, 76 S.W. 2d 1007, 96 A.L.R. 802, and Harrigan v. Blagg et al., 124 Tex. 117, 77 S.W.2d 524.

House Bill No. 150, chapter 92, page 198, General Laws 43d Legislature, Regular Session, Vernon's Ann.Civ.St. arts. 2218, 2218a (the Anti-Deficiency Judgment Law), which was held invalid in the case of Langever v. Miller, 124 Tex. 80, 76 S.W.2d 1025, 96 A.L.R. 836.

This is the first time this act has come before the appellate courts for construction. All that part of the act which undertook to change the method of sale contained in contracts, mortgages, and deeds of trust, fixed by the parties independent of the statutes, and which declared all sales made under executions, orders of sale, or under any deeds of trust, mortgages, or other contracts giving or granting any power of sale of real property for debt, made prior to the first Tuesday in March, 1934, and subsequent to the effective date of this act, has been repeatedly condemned as being unconstitutional. International Bldg. & Loan Ass'n v. Hardy, 86 Tex. 610, 26 S.W. 497, 24 L.R.A. 284, 40 Am.St.Rep. 870; Mountain Townsite Co. v. Cooper, 123 Tex. 603, 73 S.W.2d 90; Travelers' Ins. Co. et al. v. Marshall et al., supra; Harrigan v. Blagg et al., supra; Langever v. Miller, supra.

The rule is well established that the Legislature may make reasonable changes in methods and remedies for the enforcement of rights arising under contracts in which no mode of procedure is stipulated, and under judgments of courts where no specific method of procedure has been prescribed. Langever v. Miller, supra; Travelers' Ins. Co. et al. v. Marshall et al., supra; Harrigan v. Blagg et al., supra; Cooley's Constitutional Limitations, 8th Ed., p. 754; 12 C.J., p. 835, § 286; 6 R.C.L., p. 359, § 354.

Although certain moratorium acts were declared void in the cases above cited, yet the power of the Legislature to reasonably change the mode and remedies relating to the enforcement of rights in a manner not to affect such rights, where no contract with respect thereto had been made by the parties, was fully recognized. The rule is well established in this state, and elsewhere, that where parties make a contract in which they prescribe the mode of its enforcement, the Legislature has no authority to enact any law impairing the obligations of the contract; because it would violate both the Constitution of the United States and the Constitution of this state....