State ex rel. Cleveringa v. Klein

• Citation: 63 N.D. 514,249 N.W. 118
• Decision Date: 12 June 1933
• Docket Number: No. 6189.,6189.
• Parties: STATE ex rel. CLEVERINGA v. KLEIN, Sheriff.
• Court: United States State Supreme Court of North Dakota

63 N.D. 514

249 N.W. 118

STATE ex rel.CLEVERINGA

v.KLEIN, Sheriff.

No. 6189.

Supreme Court of North Dakota.

June 12, 1933.

Syllabus by the Court.

1. Any enactment of the Legislature of North Dakota is presumed to be in harmony with the Constitution of this state and the Constitution of the United States, and should be sustained as constitutional unless the contrary clearly appears.

2. Where an enactment of the state Legislature is unconstitutional in certain features and the unconstitutionality of the remainder of the act has not been shown, the law will be sustained as to the provisions regarding which the unconstitutionality is not shown.

3. In the exercise of the police power of the state, the determination by the Legislature that such a great social emergency exists as demands the exercise of the police power is entitled to great respect, and ordinarily is controlling on the courts; but where the Legislature, in enacting measures to cope with such social emergency, assumes power which by the Constitution of this state is expressly forbidden to it and is taken forever out of the powers of government of this state, the Legislature is prevented by the Constitution from exercising such power, no matter what the emergency may be.

4. Under the provisions of article 1 of the State Constitution known as the “Declaration of Rights,” the Legislature of this state is forbidden to enact any law impairing the obligation of contracts, and because of section 21 of said article which says: “The provisions of this constitution are mandatory and prohibitory unless, by express words, they are declared to be otherwise,” and of section 24 of said article which reads as follows: “To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate”-this limitation of the powers of the Legislature is absolute and remains outside of the general powers of the government of this state, so long as such constitutional provision remains.

5. By the terms of section 10 of article 1 of the Federal Constitution, the Legislature of the state of North Dakota is forbidden to “pass any * * * law impairing the obligation of contracts.”

6. The law of the land in existence at the time a contract is entered into forms a part of the contract the same as if it were expressly incorporated therein, and the obligations of the contract are determined by the law in force at the time it is made.

7. The law fixing the period of redemption from a real estate mortgage foreclosure sale, existing at the time of the entering into a contract of mortgage, wherein the parties agree that upon default in the payment of the debt secured by the mortgage the land may be sold “agreeable to the statute in such case made and provided,” is a part of the contract of the mortgage, and any change in the law fixing the period of redemption-whether the law shortens the period of redemption or extends the period of redemption-is an impairment of the obligations of such contract.

8. Under the provisions of article 1 of the State Constitution, being part of the Declaration of Rights, the Legislature of North Dakota is forbidden to enact any law depriving a person of his “property without due process of law,” and, because of the provisions of section 21 and section 24 of the Constitution, set forth in the Declaration of Rights, such prohibition exists so long as this section 13 of article 1 remains.

9. Under the provisions of section 1 of the Fourteenth Amendment to the Constitution of the United States, the state of North Dakota is specifically forbidden to “deprive any person, of * * * property without due process of law.”

10. Any law which, after the execution of the contract, extends the period of redemption and prevents the issuance of a deed upon foreclosure at the expiration of the period of redemption in existence at the time the mortgage was made deprives one entitled to the deed of the possession of his property and its rents and profits without due process of law.

11. Chapter 157 of the Session Laws of 1933, known as Senate Bill No. 2, entitled, “An Act Temporarily Extending the Time in which Redemption May be Made From Real Estate Mortgage Foreclosure, and Real Estate Execution Sales,” is held to be an emergency measure, temporary in character, the provisions of which, by its own terms expire in two years; and such law is a valid enactment governing mortgages executed and foreclosed during the period of its operation. Laws now in force, inconsistent therewith, so far as such mortgages are concerned, are suspended for two years from February 21, 1933; but thereafter are in force and effect, and foreclosure sales made after the date named are to be governed by such laws now suspended.

Appeal from District Court, Emmons County; George M. McKenna, Judge.

Mandamus proceedings by the State, on the relation of Harry C. Cleveringa, against E. M. Klein, as Sheriff of Emmons County. From an order granting a peremptory writ of mandamus and from an adverse judgment, the defendant appeals.

Affirmed.

Thurman Wright, of Linton (C. F. Kelsch, of Mandan, of counsel), for appellant.

Coventry & Thompson, of Linton (George F. Shafer, of Bismarck, of counsel), for respondent.

BURR, Judge.

The sole issue in this case is the scope and effect of Senate Bill No. 2 known as chapter 157 of the Session Laws of 1933 providing for “Extension Redemption Real Estate Mortgage Foreclosure.”

One Baumgartner was indebted to the petitioner in the sum of $2,000. To secure the payment of said amount, Baumgartner and wife, on August 23, 1928, executed and delivered to the petitioner a mortgage upon the southeast quarter of section 35 of township 132, range 76, in Emmons county. In the instrument they covenanted to pay interest on said sum annually at the rate of 6 per cent., to pay the taxes, and further that, if default were made in any of the agreements, petitioner could declare the whole sum due and payable and was authorized and empowered to sell the premises, “agreeably to the statute in such case made and provided” and “in case of the foreclosure of this mortgage” they would pay the “costs allowed in that behalf by law.”

Default was made in the payment of interest and taxes, and on February 27, 1932, the mortgage was foreclosed and the premises sold to the petitioner for the sum of $2,289.52.

The defendant in this case is the sheriff of Emmons county. February 27, 1932, he issued to the petitioner his certificate of mortgage sale, which certificate states “that the purchaser will be entitled to a deed of said premises so sold at the expiration of one year from the date of sale unless such premises are previously redeemed as provided by law.” No redemption was made, and at the expiration of the period of redemption petitioner demanded of the sheriff that he execute a sheriff's deed, and tendered to the sheriff the certificate of sale and such sums as were necessary for the execution of the deed, which demand the sheriff refused.

On March 11, 1933, the petitioner applied to the district court for a writ of mandamus setting forth the facts hereinbefore stated.

The defendant answered admitting all the aforementioned facts and also that “such foreclosure sale was in all things valid and regular,” but alleged that, because of the provisions of the aforesaid law, the “period of redemption in mortgage foreclosure sales was extended for a period of two years; that such law provided that it should become immediately effective, and that acting under and by virtue of said law, this defendant has refused to execute a deed as demanded by the petitioner herein, and not otherwise.”

Upon the hearing, the court issued a peremptory writ of mandamus requiring the defendant to execute the sheriff's deed.

From the order granting the peremptory writ and from the judgment and writ, the defendant has appealed alleging that the court erred in ordering the writ to issue.

This act is as follows:

“An Act temporarily extending the time in which redemption may be made from real estate mortgage foreclosure, and real estate execution sales.

Be it enacted by the Legislative Assembly of the state of North Dakota:

§ 1. That whereas a public emergency and crisis exists throughout this state endangering the public health, welfare and morals, in that agricultural crops and products have been sold on an average below the cost of production since 1922, and all agricultural land values have virtually disappeared, due to the nation-wide depression, which caused under-consumption and produced starving millions throughout the nation; and whereas taxes have been steadily increasing in spite of the deplorable condition of agriculture, and whereas agriculture is the principal industry in this state and all other industries are solely dependent for their existence upon agriculture; and whereas there is at present no means whatsoever by which existing mortgages and judgments can be refinanced, and such debtors are at the absolute mercy of their creditors; and whereas hundreds and thousands of families have already lost their homes through mortgage foreclosures or other judicial proceedings; and whereas hundreds and thousands more will lose their homes unless some relief is given, therefore, in order to prevent the utter ruin and destruction of agriculture, commerce and industry and the collapse of civil government, and in order to maintain the integrity of the family and the home, and the public health, welfare, and morals of the people of this state, the period within which a mortgagor or judgment debtor may redeem from a foreclosure sale or an execution sale of real estate, hereafter made, is hereby extended from one year to two years from the date of such sale.

§ 2. That the period within which a mortgagor or judgment debtor may redeem from a mortgage foreclosure or execution sale of real...