State ex rel. Thomas Cruse Sav. Bank v. Gilliam
| Decision Date | 16 March 1896 |
| Citation | 44 P. 394,18 Mont. 94 |
| Parties | STATE ex rel. THOMAS CRUSE SAV. BANK v. GILLIAM, Sheriff. |
| Court | Montana Supreme Court |
Appeal from district court, Jefferson county; Frank Showers, Judge.
Mandamus on the relation of the Thomas Cruse Savings Bank, to Alexander P. Gilliam, as sheriff of Jefferson county, Mont Writ denied, and relator appeals. Affirmed.
This is an appeal from the judgment of the district court rendered in favor of the respondent, upon dismissing the relator's application for a writ of mandamus. Relator, in the district court, asked for the writ commanding the respondent, who was sheriff of Jefferson county, to execute and deliver to it a deed of real estate sold upon judgment foreclosing a mortgage upon the same. The petition set forth that on January 5 1892, George S. Kennedy and wife, executed to relator, to secure an indebtedness, a mortgage upon the real estate described in the petition; that on March 5, 1895, relator commenced an action to foreclose the mortgage, in which action judgment was rendered July 2, 1895. The judicial sale took place August 3, 1895. Six months having expired on February 4, 1896, the relator demanded a deed from the respondent, the sheriff. The respondent refused to make the deed, alleging as a reason that the time for redemption was one year instead of six months, and that the deed was not due until August 3, 1896. These facts were all set up in the petition, and were by the district court considered insufficient upon which to issue the writ of mandamus. The contention is based upon the fact that, when the mortgage was given, the redemption period under the law was six months. On July 1, 1895, the law went into effect which made the redemption period one year. The respondent, the sheriff stood upon the statute as enacted, and refused to make the deed. The appellant's contention was that the statute of July 1, 1895, was unconstitutional and void as to this mortgage, in that it was enacted after the mortgage was given, and thus impaired the obligation of the contract between the mortgagor and mortgagee. Const. Mont. art. 3, § 11, and Const. U.S. art. 1, § 10.
T. J. Walsh, for appellant.
Toole & Wallace, for respondent.
DE WITT, J. (after stating the facts).
As noted in the statement, the only question in this case is whether the statute, having been enacted after the mortgage was executed, and which extended the time for redemption, is constitutional. Does the statute impair the obligation of the contract, or does it reach the remedy only? This case has been very ably briefed by learned counsel on each side. Appellant's counsel opens his discussion with the following appropriate remarks: It is quite true, as counsel suggests, that we are deeply sensible of the importance of the constitutional question here involved; and, furthermore, we may add, that we approached its consideration with a strong preconception against the constitutionality of the statute. Chief Justice Martin, of the supreme court of Kansas, said, in his able discussion of a similar statute: Beverly v. Barnitz (Kan. Sup.) 42 P. 731. The commercial and political conditions mentioned by the Kansas decision did not exist in this state to any such extent as they did in Kansas, and we do not know that the considerations which, it seems, moved the Kansas legislation, influenced ours. Our statute came in with the new codes of 1895. But the suggestion even of the existence of any sentiment such as that expressed in the Kansas decision causes a court to hesitate and scrutinize closely, lest it may be that a statute passed in times of financial depression has overridden the fundamental law of the constitution; for the constitution is for good times and bad times, for adversity as well as prosperity. Entertaining such views, and having planted them in the decisions of this court upon the constitutional questions which we have heretofore considered, we approached the present matter with the apprehension that, perhaps, the legislature had yielded to some sentiment of commiseration for the present debtor, and forgotten the chart and compass of the constitution. But this apprehension has been gradually and effectually dissipated by a renewed study of the cases from Sturges v. Crowninshield, 4 Wheat. 122, to Morley v. Railway Co., 146 U.S. 162, 13 S.Ct. 54; and in the state courts, the cases of State v. Sears (Or.) 43 P. 482, and Beverly v. Barnitz (Kan. Sup.) 42 P. 725. The learning and reasoning upon this question has recently been thoroughly collected in the cases from Kansas and Oregon above noted.
While the question here presented is one under the state constitution, it is also a federal question, under the constitution of the United States; and, so viewing it, we are of opinion that the Kansas and Oregon decisions are sustained by the cases in the United States supreme court decided subsequent to Bronson v. Kinzie, 1 How. 311, McCracken v. Hayward, 2 How. 608, and Howard v. Bugbee, 24 How. 461. The Kansas and Oregon cases above mentioned ably review the history of this question as it has been treated in the United States decisions, especially the following cases: Sturges v. Crowninshield, 4 Wheat. 122; Bronson v. Kinzie, 1 How. 311; Terry v. Anderson, 95 U.S. 628; Antoni v. Greenhow, 107 U.S. 769, 2 S.Ct. 91; Insurance Co. v. Cushman, 108 U.S. 51, 2 S.Ct. 236; Morley v. Railway Co., 146 U.S. 162, 13 S.Ct. 54; Ogden v. Saunders, 12 Wheat. 215; Louisiana v. New Orleans, 102 U.S. 203; Curtis v. Whitney, 13 Wall. 68; Edwards v. Kearney, 96 U.S. 595; Seibert v. Lewis, 122 U.S. 284, 7 S.Ct. 1190; Clark v. Reyburn, 8 Wall. 318; Von Hoffman v. City of Quincy, 4 Wall. 535; Teal v. Walker, 111 U.S. 242, 4 S.Ct. 420.
Cordially concurring, as we do, with the decisions of the Kansas and Oregon courts, and finding our reasons for such concurrence in the same United States supreme court cases discussed by them, and they having so thoroughly occupied the field before we reached it, it would seem, perhaps, to be an affectation of original research to write at much length in this opinion. But the importance of the case probably demands some setting forth of our reasons for holding that the United States supreme court decisions are to the effect that our law of 1895 is not unconstitutional.
While our constitution forbids the legislature from passing a law impairing the obligation of contracts, the same inhibition is found in the constitution of the United States; and therefore the supreme court of the United States is the court of final resort upon this question. That being true, we now base our decision upon the doctrines as announced by the United States supreme court since Bronson v. Kinzie and some of the cases immediately following it. Passing that early landmark in the history of the construction of article 1,§ 10, Const. U.S., to wit, Sturges v. Crowninshield (1819) 4 Wheat 122, in which Chief Justice Marshall, as said by Chief Justice Martin of Kansas, "well-nigh exhausted the subject," we encounter Bronson v. Kinzie (1843) 1 How. 311, that much quoted, canvassed, approved, and criticised case. There were two points in that case, but there is only one with which we have now to do. It was there held that a law passed subsequent to the execution of the mortgage in question, which law gave the mortgagor 12 months in which to redeem, was void under article 1, § 10, of the constitution of the United States. The case came from the state of Illinois, where the common-law view of the nature of a mortgage fully obtained. Upon this point, Chief Justice Taney, in rendering the decision, said: ...
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