State Bank of Elberta v. Peterson, 1 Div. 747.

• Decision Date: 22 December 1932
• Docket Number: 1 Div. 747.
• Citation: 145 So. 154,226 Ala. 13
• Parties: STATE BANK OF ELBERTA v. PETERSON.
• Court: Alabama Supreme Court

145 So. 154

226 Ala. 13

STATE BANK OF ELBERTA v. PETERSON.

1 Div. 747.

Supreme Court of Alabama

December 22, 1932

Appeal from Circuit Court, Baldwin County; F. W. Hare, Judge.

Action of ejectment by the State Bank of Elberta against William Peterson. From a judgment for defendant, plaintiff appeals.

Reversed and rendered.

Elliott G. Rickarby, of Mobile, for appellant.

Lloyd A. Magney, of Foley, for appellee.

FOSTER J.

The mortgage here under consideration was executed in April 1922, and the power of sale was performed in March, 1932. The power of sale did not specify the place where the sale must be had, but did provide that thirty days' notice should be given and that the sale should be for cash at public outcry, and that the mortgagee might bid at the sale. There is no claim of irregularity, except that the sale was conducted before the post office at Elberta, in Baldwin county, where the land is situated, pursuant to the notice, but not before the courthouse door of the county, which we judicially know is not at Elberta.

Reliance is had upon section 9011, Code, which provides that if the mortgage is silent as to the place of sale under such a power, it must be made at the courthouse door of the county wherein the land is situated. That section of the Code became law by virtue of its incorporation into the Code of 1923 written by the legislative Code commission, and, as written adopted by the Legislature. It therefore became effective with the effective date of the Code, to wit, August 17, 1924, by virtue of the proclamation of the Governor.

The general rule is that statutes are intended to operate in the future, unless a contrary effect is expressly declared or necessarily implied. Hawkins v. People's Finance & Thrift Co., 219 Ala. 558, 122 So. 650, and cases cited; 59 Corpus Juris 1159, 1160. This includes the concept that existing contracts are impliedly not affected. We think also that because section 9019, Code, declares that the provisions of the act of September 29, 1923 (Acts 1923, p. 658) shall not apply to mortgages executed before that date, there is shown a purpose to make the entire article operative only upon mortgages made after the effective date of its several provisions. There is authority for the exact question we have here, that statutes which fix the place of sale under a power are said not to apply to mortgages containing such power executed before their enactment. 41 Corpus Juris 967, 925; Belcher Land Co. v. Taylor (Tex. Com. App.) 212 S.W. 647; McConneaughey v. Borgardus, 106 Ill. 321; White v. Malcolm, 15 Md. 529; Palmer v. Latham, 173 N.C. 60, 91 S.E. 525; Davis v. O'Connell, 92 Miss. 348, 47 So. 672.

It seems also to be the settled construction of a power, that if its provisions do not specify a place of sale, and none is then provided by law, the selection of a place is left to the reasonable and prudent discretion of the grantee of the power, 41 Corpus Juris 967, cases in note 8; McClendon v Equitable Mortgage Co., 122 Ala. 384, 391, 25 So. 30. So that the right to exercise such prudent discretion is thereby as much a part of the contract as if written in it. A subsequent statute which might operate upon such a situation affects an existing contractual status the same as though the place had been specified in the power. The right to make such a selection is or may be a valuable consideration for entering into the transaction. At least such was the agreement here. To change its meaning by statute may subject the statute to attack as for impairing the obligations of a contract. Cowley v. Shields, 180 Ala. 48, 60 So. 267. All of such thoughts impel us to the conclusion that it is not here controlling, and that the mortgagee had the right under the power to...