Stevens v. Andrews

• Decision Date: 31 October 1860
• Citation: 31 Mo. 205
• Parties: STEVENS v. ANDREWS, Sheriff of St. Louis County.
• Court: Missouri Supreme Court

31 Mo. 205

STEVENS

v.ANDREWS, Sheriff of St. Louis County.

Supreme Court of Missouri.

October Term, 1860.

1. The stay law of March 7, 1861, is unconstitutional in its application to executions issued upon judgments rendered previous to the passage of said act.

This cause came before the supreme court on a motion made by Stevens, defendant, in the case of Boxley v. Stevens, reported 31 Mo. 201, for an order prohibiting the sheriff of St. Louis county from selling the real estate of the said defendant Stevens under an execution until within fifteen days of the next October term of the supreme court. The said execution was issued from the office of the clerk of the supreme court on the 18th of January, 1861, under a judgment rendered against the said Stevens in the supreme court in the above case of Boxley v. Stevens, at the October term, 1860. Said execution was returnable to the March term, 1861, of the supreme court. The above motion, made at said March term, 1861, is based upon the ground that by the stay law of March 7, 1861,^a1 said real estate could not be sold under execution until within fifteen days of the next term of the supreme court.

Lackland, Cline & Jamison, for Stevens, cited 2 Binn. 277, 417; 17 Mo. 603; 11 Mo. 411; 4 Scam. 364; 5 Watts & S. 488; 1 McLean, 528; 4 Humph. 13; 6 Blackf. 373; 1 Ala. 312; 5 How. 285; 4 W. & S. 218; 6 Shep. 109; 1 McLean, 35; 8 W. & S. 49; 1 Hemp. 119, 313; 11 Mo. 188, 344, 545; 16 Mo. 68; 2 Blackf. 8; 3 Marsh. 73; 6 How., Miss., 625; 8 Pet. 110; 1 Bald. 74; 2 Pet. 414; 11 Pet. 420.

R. H. Gamble, for the Sheriff.

Glover & Shepley, for Boxley.

NAPTON, Judge, delivered the opinion of the court.

This is a motion to prohibit the sheriff of this county from proceeding to sell the property of the applicant, on an execution issued by the clerk of this court, on a judgment rendered at the last term and returnable to the present term. The ground of the application is that by an act of the legislature, passed March 7, 1861, it is provided that all executions issued at the time of the passage of said act shall be returnable to the second term after the date of said writs, and that no real estate shall be sold under an execution until within fifteen days of the return thereof. Previously to this enactment executions were returnable to the next succeeding term of the court after their issuance, and the execution in this case issued before the passage of the law, and was returnable to the present term of this court.

The only question presented by the motion is the validity of the act referred to, so far as it applies to this execution.

In the case of Bailey v. Gentry and wife, decided by this court in 1822, the act of the legislature of December 28, 1821, “pointing out the manner that executions may be stayed, and regulating the sale of property under execution,” was decided unconstitutional and void. That act was in substance both a valuation law and a stay law. Its purpose was, on its face, to effect a suspension of the creditor's power to collect his debt for two years and a half, unless he would take the debtor's property at two-thirds of its appraised value, or could effect a sale of it by the sheriff at that price. The act was considered by the court as an infringement of that provision of our constitution and of the constitution of the United States, which prohibits laws impairing the obligation of contracts, and also in conflict with the section of our declaration of rights, which require “right and justice to be administered without sale, denial or delay.”

In the case of Brown v. Ward, 1 Mo. 209, the same question was raised and determined in conformity with the opinion in Bailey v. Gentry.

In the case of Bumgardner v. Clerk of Howard County, 4 Mo. 50, the twelfth section of the act of March 21, 1835, providing for a stay of execution from justices' courts, on certain conditions specified, was held to be invalid. This opinion was delivered in the same year, and shortly after the passage of the act.

The Supreme Court of the United States, in the case of Bronson v. Kinzie, 1 How. 311, had under consideration an act of the legislature of Illinois, which prohibited the sale of property under execution for less than two-thirds of its appraised value, and they held the law to be unconstitutional, so far as it attempted to act upon contracts made before its passage. The law was considered as impairing the obligation of the contract by substituting a remedy substantially less efficacious than the one existing when the contract was made.

In the case of McCracken v. Hayward, 2 How. 608, this decision in Bronson v. Kinzie was renewed, and the law of Illinois was again declared unconstitutional. In the opinion of the court, in the last case, the judge delivering it said: “The obligation of the contract between the parties in this case was to perform the promises and undertakings contained therein; the right of the plaintiff was to damages for the breach thereof, to bring suit and obtain judgment, to take out and prosecute an execution against the defendant till the judgment was satisfied, pursuant to the existing laws of Illinois. These laws, giving these rights, were as perfectly binding on the defendant and as much a part of the contract as if they had been set forth in its stipulations in the very words of the law relating to judgments and executions. If the defendant had made such an agreement as to authorize a sale of his property, which should be levied on by the sheriff for such price as should be had for it at a fair public sale, on reasonable notice, it would have conferred a right on the plaintiff which the constitution made inviolable; and it can make no difference whether such right is conferred by the terms or law of the contract; and subsequent law which denies, obstructs or impairs this right by superadding a condition that there shall be no sale for any sum less than the value of the property levied on, to be ascertained by appraisement or any other mode of valuation than a public sale, affects the obligation of the contract as much in the one case as the other, for it can be enforced only by a sale of the defendant's property, and the prevention of such sales is the denial of a right.”

It will be perceived that valuation and stay laws have been declared unconstitutional by this court as early as 1822, and that these decisions have been acquiesced in now for nearly forty years. It can not be claimed that any discrimination could, with any plausibility, be attempted between the law now under consideration and the two acts of the legislature heretofore passed upon. These adjudications, by preserving the inviolability of private and public contracts, have resulted in placing the credit of our state and citizens on a high and safe basis, beyond the reach of a class of laws...