Swinburne v. Mills

Decision Date23 September 1897
Citation50 P. 489,17 Wash. 611
CourtWashington Supreme Court

Appeal from superior court, Pierce county; J. A. Williamson, Judge.

Action by Nathaniel R. Swinburne against A. U. Mills, as sheriff of Pierce county, for a peremptory writ of mandamus. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

C. M. Riddell, for appellant.

O. G Ellis, for respondent.


This is an appeal from a judgment of the superior court of Pierce county, granting a peremptory writ of mandamus against A. U Mills, as sheriff of Pierce county, Wash., commanding the said sheriff to proceed with the sheriff's sale under the special execution and order of sale issued out of the clerk's office of said court on the 24th day of June 1897, in the action of Nathaniel R. Swinburne against George E. De Lano et al., and at once to advertise certain mortgaged property described in the decree in said cause for sale, to satisfy the judgment in said cause, without appraisement, and without requiring the judgment creditor or the judgment debtor, or either of them, to fix any value upon said mortgaged property, or any part thereof, as a minimum price to be paid at such sale, and to proceed at once to execute said order of sale under and pursuant to the old law regulating sales on special execution and order of sale on mortgage foreclosures, without regard to, or any compliance with, the provisions of the recent act of the legislature regulating sales under execution, being chapter 50, pp 70-76, inclusive, Laws Wash. 1897. Without further stating the case, it will be sufficient to say that it involves the legality or application of the law just mentioned, and entitled "An act relating to the sale of property under execution and decree and the confirmation of sheriff's sales, and repealing sections 511, 512, 513, 514, 515, 516, 517, 518, 519, 520, and 521 of Vol. 2 of Hill's Annotated Statutes and Codes of the State of Washington, relating to the redemption of real estate sold on decree of foreclosure and on execution." The respondent insists that the act under consideration was not intended to cover the foreclosure of mortgages, or to interfere in any way with the law in relation to the foreclosure of mortgages, only in so far as it repealed the old law of redemption, whether such mortgages were executed before or after the said act went into effect, but was intended simply to apply, and does apply, exclusively, to sales under executions. He contends (1) that neither the title to nor the body of the act will sustain the contention that the law applies to the foreclosure of mortgages; (2) that it was not the intention of the legislature to make the act retroactive in its effect; and (3) that if the law does apply to the foreclosure of mortgages, and if it was the intention of the legislature to make the act retroactive, that portion of the act in relation to a year's stay of sale, and the provisions for fixing a valuation by the judgment creditor or judgment debtor, or by appraisement preliminary to any sale, are unconstitutional and void, for the reason that they are obnoxious to section 10 of article 1 of the constitution of the United States, which provides that "no state shall *** pass any *** law impairing the obligation of contracts," and section 23 of article 1 of the constitution of this state, which provides that "no *** law impairing the obligations of contracts shall ever be passed."

We have considered with some care the first proposition presented by the respondent, viz. that the title to the act in question is not sufficient to include the foreclosure of mortgages, nor is there sufficient in the body of the act to include that subject; but we are inclined to think that, considering the comprehensiveness of the word "decree," a holding that the word, as used in the title, did not apply to a decree of foreclosure, would be too literal; and, while the body of the act is to some extent indefinite and uncertain, we think the inference which must necessarily be drawn from the provision in section 10, that "in case of foreclosure of mortgages or other liens nothing shall prevent the sale of the entire premises included within the mortgage or lien," is that it was the intention of the act to include mortgages as well as property sold under execution.

We also think that it was the intention of the legislature to make the provisions of this act retroactive. Section 18 provides that "this act shall not apply to judgments entered prior to the taking effect thereof, nor to executions which shall issue thereupon, but proceedings thereunder shall be had in all respects in the manner now provided by law, and redemptioners shall have the same right to redeem property sold upon judgments or decrees rendered prior to the taking effect of this act, as if this act had not been passed." It seems by this expression of the legislature plainly to have been their intention to subject judgments entered subsequent to the taking effect of the act to the operations of the new law, without regard to the date of the contract. There can be no other reasonable inference deduced from the language used in section 18.

This brings us, then, to the third proposition, viz.: Is the act unconstitutional so far as its application to contracts made prior to the passage of the act is concerned? It will thus be seen that this case involves the principle of inviolability of contracts. This principle the courts have always protected, no matter from what quarter or under what guise it has been assailed, whether by a party to the contract who has sought to vary its terms, or by legislative enactments in his interests. It is a principle which is founded upon honesty and good faith, and finds its support in ethics as well as law, and it was recognized and enforced before it became a constitutional guaranty. It gives stability to business transactions. In fact, it makes them possible. It gives value to contracts, and, without the upholding of this principle, neither civilization nor governments could exist. A contract is an agreement to do or not to do a particular thing. The obligation is the binding force of the contract. The constitution prohibits the passing of laws which impair the obligation of a contract. The practical question, then, is: What is an impairment of a contract? Webster's definition of "impair" is "To make worse; to diminish in quality, value, excellence, or strength; to deteriorate." Then, if the value of a contract is deteriorated or lessened by the passage of an act, the obligation of the contract is most certainly impaired. Then the question arises: Was the contract of this mortgagee deteriorated or made less valuable by the passage of this act? It is a principle of law so often enunciated, and so uniformly maintained, that the law which is in existence at the time a contract is made becomes a part of the contract, that it would be idle to cite authorities on that proposition, or to further mention it. In this case it is especially stipulated in the mortgage that the laws in force at the time the contract was made should become a part of the contract; but, in the absence of such stipulation, the effect would be exactly the same. Under the law in existence at the time the contract was made, the mortgagee had a right to the sale of this land at once upon the issuance of his execution, subject only to the redemption provided for by law. This was a valuable right, and a right, no doubt, that was taken into consideration by the judgment creditor, or, in this case, the mortgagee, when the contract was made. The law now compels him to wait more than a year after judgment before he can have the sale made. It seems to us to be beyond controversy that, as to antecedent contracts, this provision of the law is void. Again, under the law in existence at the time the contract was made, the mortgagee had a right to have the property mortgaged sold, and to have the proceeds of the sale, whatever they might be, subjected to the payment of his judgment. Now, a condition is imposed upon him that might defeat the recovery of his debt altogether. The land must be appraised, and, if it does not bring within 80 per cent. of the appraised value, the sale will be set aside, and may be set aside indefinitely. Under the present law, the more security in value that the mortgagee takes, the worse position he is placed in. For instance, if, to secure a debt of $1,000, he takes security on land which will be reasonably valued at $10,000, the law subjects him to the necessity of finding a bidder who will pay $8,000 for the land mortgaged. If he cannot find any one else, in order to procure the benefits of the sale, he must bid the land in himself for that amount. He then has to be responsible for an outlay-for a purchase of the lands-which was never contemplated in his original contract. These provisions plainly lessen the value of his contract, because...

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17 cases
  • Langever v. Miller
    • United States
    • Texas Supreme Court
    • November 22, 1934
    ...or a named percentage thereof. These authorities are applicable here. Robards v. Brown, 40 Ark. 423 (1879-1883); Swinburne v. Mills, 17 Wash. 611, 50 P. 489, 61 Am. St. Rep. 932 (1897-1897); Sheets v. Peabody, 7 Blackf. (Ind.) 613, 43 Am. Dec. 107 (1843-1845); Collins v. Collins, 79 Ky. 88 ......
  • Travelers' Ins. Co. v. Marshall
    • United States
    • Texas Supreme Court
    • November 21, 1934
    ...Sheets v. Peabody, 7 Blackf. (Ind.) 613, 43 Am. Dec. 107 (1843-1845); Collins v. Collins, 79 Ky. 88 (1878-1880); Swinburne v. Mills, 17 Wash. 611, 50 P. 489, 61 Am. St. Rep. 932 (1897-1897); Elliott on Contracts, Vol. 3, p. 925, § 2732, and many cases cited in the notes; Doe ex dem. Wolf v.......
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    • Minnesota Supreme Court
    • June 1, 1900
    ... ... Kinzie, 1 How ... 311; People v. Common Council, 140 N.Y. 300; ... Peninsular v. Union, 100 Wis. 488; Swinburne v ... Mills, 17 Wash. 611 ...          The ... service and procedure provided for is not due process of law ... In so far as it ... ...
  • State ex rel. Cleveringa v. Klein
    • United States
    • North Dakota Supreme Court
    • June 12, 1933
    ...Bovey, Shute & Jackson, supra, the term “impair” means diminish in value or excellence or strength. See, also, Swinburne v. Mills, 17 Wash. 611, 50 P. 489, 61 Am. St. Rep. 932, where it was held that a law, enacted after the mortgage was given, required the judgment creditor to wait a year ......
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