Sidway v. Lawson

• Decision Date: 21 October 1893
• Parties: SIDWAY v. LAWSON
• Court: Arkansas Supreme Court

23 S.W. 648

58 Ark. 117

SIDWAY v. LAWSON

Supreme Court of Arkansas

October 21, 1893

Appeal from Carroll Circuit Court in Chancery, Eastern District EDWARD S. MCDANIEL, Judge.

Decree reversed and cause remanded.

U. M. & G. B. Rose and W. F. Pace for appellants.

There is no usury. 33 Ark. 645; 35 id. 53; ib. 55; 26 id. 358. Questions of interest and usury are determined bye the law of the place of payment, regardless of the situs of the property pledged as security. The mortgage is only an incident of the debt. 3 Ark. 727; 2 Vern. 395; 10 Wheat. 383; 3 Green's Chy. 128; 1 Hast. Chy. 17; 14 N.J.Eq. 56; 7 Oh. St. 388; 10 R. I. 393; 14 Am. Rep. 691-2; 1 Neb. 108; 93 Am. Dec. 331; 11 Iowa 1; Story, Conf. Laws, sec. 287 a; 1 Suth. Dam. 641.

Crump & Watkins and W. S. McCain for appellees.

1. The mortgage is void under the Acts of 1887, p. 90. The wife did not join in the deed. She only relinquished dower. This is not sufficient. Thompson, Homest. sec. 528-534; 21 Ill. 45; 89 id. 320; 2 Allen, 202; 11 Gray, 332; 13 Bush, 391; 53 Iowa 481; 55 id. 753.

2. The evidence makes a clear case of usury. 54 Ark. 40. The rule in 26 Ark. 358 and 33 id. 645 has been abolished by statute. Mansf. Dig. sec. 4736.

U. M. & G. B. Rose in reply.

1. There is an express release of homestead in the mortgage.

2. Sec 4736, Mansf. Dig., is only a privilege, and not a prohibition.

Rose Hemmingway & Rose for appellants.

If the mortgage was void under the act of 1887, it is cured by the act of 1893. It applies to pending suits. 42 Ark. 141 has been overruled. 43 Ark. 421; 44 id. 365; 45 id. 41; 48 id 187; Cooley, Const. Lim. (6th ed.) 468; 30 Cal. 138.

Crump & Watkins and W. S. McCain for appellees on the act of 1893.

The act of 1893 does not apply to a case pending in this court on appeal. 42 Ark. 141. This case has not been doubted or overruled. See 16 Ark. 384; Rose on the Constitution,60.

OPINION

BATTLE, J.

This was an equitable action, commenced by Lawson and wife against L. B. Bidway, to set aside a deed of mortgage on account of usury. The defendant answered, denying the usury and making his answer a cross-complaint, asked for a decree for the possession of the lands conveyed by the deed, according to the terms thereof; and then the plaintiffs answered, saying that the mortgage was void because the property mentioned therein was their homestead.

The circuit court found that the mortgage, and the note which it was given to secure, were tainted with usury, and declared the mortgage canceled, set aside, and held for naught; and the defendant appealed.

Upon a careful consideration of the evidence adduced at the hearing in the court below, we are of the opinion that there is no usury in the note or mortgage.

The mortgage was signed and delivered by the appellees to appellant, and purports to convey to him certain lands of the husband, which constitute their homestead, in trust to secure the payment of a promissory note of Lawson. Appellees contend that it was not executed in accordance with the requirements of the act entitled "An act to render more effectual the constitutional exemption of homestead," approved March 18, 1887, because the wife did not "join in the execution" of the same, and is, therefore, void; and appellant insists that if the contention of appellees be correct, it was validated by the act entitled "An act to cure defective conveyances and acknowledgements," approved April 13, 1893.

Section one of the act of March 18 provides, "that no conveyance, mortgage or other instrument affecting the homestead of any married man shall be of any validity except for taxes, laborers' and mechanics' liens, and the purchase money, unless his wife joins in the execution of such instrument and acknowledges the same;" and the act of April 13, declared that all such conveyances, mortgages, and instruments, which have been executed since the 18th of March, 1887, and are defective or ineffectual because they were not executed and acknowledged in compliance with section one, and the record thereof, shall be as valid and effectual as though the "act to render more effectual the constitutional exemption of homestead" had never been passed.

The final decree of the circuit court in this action was rendered on the 24th day of August, 1891. It is contended, in behalf of appellees, that the latter act does not affect the mortgage in question, because this decree was pronounced on a day prior to its enactment. Wright v. Graham, 42 Ark. 140, supports this contention, but appellant insists that it is clearly erroneous, and should be overruled.

As to the power of the legislature to cure defects in proceedings, conveyances and acknowledgments by a retrospective statute, it is said: "If the thing wanting, or failed to be done, and which constitutes the defect in the proceedings, is something the necessity for which the legislature might have dispensed with by prior statute, then it is not beyond the power of the legislature to dispense with it by a subsequent statute. And if the irregularity consists in doing some act, or in the mode or manner of doing some act, which the legislature might have made immaterial by prior law, it is equally competent to make the same immaterial by a subsequent law." Green v. Abraham, 43 Ark. 420; Cooley's Const. Lim. (6th ed.) 457.

This power is further limited. The legislature cannot, by the enactment of a retrospective statute, exercise a power in its nature clearly judicial. It is prohibited from so doing by the constitution. The powers of the government are divided into three distinct departments, the legislative, executive and judicial; and every "person or collection of persons, being of one of these departments," is prohibited from exercising "any power belonging to either of the others," except wherein it is expressly directed or permitted by the constitution. Constitution of 1874, art. 4.

Under our constitution it is within the exclusive province of the courts to determine adversary suits within their jurisdiction pending between litigants, according to established principles, "and to enforce their decisions by rendering judgments and executing them by suitable process." The legislature cannot control them in the exercise of such jurisdiction by declaratory statutes designed to interpret previous enactments; or determine the rights of such litigants by substituting in the place of the well settled rules of law its arbitrary will; or set aside or annul final judgments or decrees; or grant or authorize a new trial; or direct a rehearing of a cause after it has been finally determined, and the judgment therein has become final and conclusive on the parties; or allow an appeal from a judgment or decree after the time for taking it has expired. Denny v. Mattoon, 2 Allen 361; Richards v. Rote, 68 Pa. 248; McDaniel v. Correll, 19 Ill. 226; Lewis v. Webb, 3 Greenleaf, 326; Mayor v. Horn, 26 Md. 194; Pryor v. Downey, 50 Cal. 388; Dorsey v. Dorsey, 37 Md. 64; Yeatman v. Day, 79 Ky. 186; Moser v. White, 29 Mich. 59. This power cannot be constitutionally exercised by the legislature, because, if it could, the legislature would have the right to deprive the judiciary of its most essential prerogative. In that case the courts could no longer finally adjudicate and determine the rights of litigants. "The will of the legislature would be substituted in the place of fixed rules and established principles, by which alone judicial tribunals can be governed. The power to correct errors, and to revise and reverse judgments, which, in the strictest sense of the word, has always been deemed essentially judicial, would be transferred to the legislative branch of the government, even to the extent of controlling the final decrees of the tribunal of last resort." An exercise of such authority "would lead to the entire destruction of the order and harmony of our system of government, and to a manifest infraction of one of its fundamental principles."

But the legislature can enact statutes on subjects which properly come within the cognizance of courts, which may form the basis of judicial consideration and judgment in suits pending at the time of their enactment. Curative statutes, when valid and applicable, should govern the courts in such cases, unless pending suits are excepted. They govern on the ground that "the bringing of the suit vests in a party no right to a particular decision, and his case must be determined on the law as it stands, not when the suit was brought, but when the judgment is rendered." Green v. Abraham, 43 Ark. 420; Johnson v. Richardson, 44 Ark. 365; Beard v. Dansty, 48 Ark. 183, 2 S.W. 701; Cooley's Const. Lim. 468, 469.

In Wright v. Graham, 42 Ark. 140, the court said: "The...