Wilder v. Campbell

• Decision Date: 31 January 1896
• Citation: 43 P. 677,4 Idaho 695
• Parties: WILDER v. CAMPBELL, SHERIFF
• Court: Idaho Supreme Court

43 P. 677

4 Idaho 695

WILDER v. CAMPBELL, SHERIFF

Supreme Court of Idaho

January 31, 1896

MORTGAGE FORECLOSURE-TIME ALLOWED FOR REDEMPTION-ACT EXTENDING TIME DOES NOT AFFECT MORTGAGES EXECUTED AND RECORDED PRIOR TO PASSAGE OF ACT.-Mortgage was foreclosed, decree of sale awarded, and land sold by virtue thereof; certificate of sale issued to purchaser; purchaser, on expiration of time allowed for redemption, demands a deed. Sheriff refuses to execute deed on the ground that the legislature has extended the time for redemption. Held, that the act of the legislature extending time of redemption does not affect sales under foreclosure of mortgages, where the same were executed and recorded prior to the passage of the act.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Judgment affirmed, with costs to the respondent.

S. S Denning, for Appellant.

The only question arising in this case addressed to the sound discretion of the court is, Was the sheriff in error in refusing to execute a deed to the premises at the end of six months, the period allowed for redemption under the old laws of Idaho or was he justified in refusing to execute a deed until the expiration of twelve months after the sale of said premises? This brings us to a consideration of the Session Laws of Idaho of 1895 at page 34. Section 4494 of the Revised Statutes of Idaho formerly provided for a redemption period of six months. Under the Session Laws of 1895, the legislature enlarged this period to one year. Under this new law defendant maintains that plaintiff was not entitled to a deed until the expiration of one year. Do the Session Laws of Idaho of 1895 impair the obligation of a contract, or do they simply postpone the remedy? Appellant contends that they simply postpone the remedy of the mortgagee after a sale. They in no wise impair the value of the contract nor the obligation thereof. (Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 How. 611 Lessee v Ewing, 3 How. 716; Howard v. Bugbee, 24 How 461; Edwards v. Kearzey, 96 U.S. 595; Watkins v. Glenn, 55 Kan. 417, 40 P. 316.)

Forney, Smith & Moore and A. E. Gallagher, for Respondent.

The one question involved in this appeal is whether or not the act of the Idaho legislature, pages 34 and 35, Laws of 1895, is constitutional and extends the time of redemption from a sale on a decree obtained after this law took effect, but which forecloses a mortgage executed prior to the passage of that act. Section 16, article 1, Idaho constitution, provides: "No law impairing the obligation of contracts shall ever be passed." Section 10, article 1, United States constitution, provides that "no state shall pass any laws impairing the obligation of contracts." The appellant contends that the act of 1895 only refers to and regulates the remedy, a thing the legislature may do, and consequently the act does not come within the inhibition of either the state or United States constitutions. In this we think the appellant is wrong for the following reasons: By the obligation of a contract is meant the means which at the time of its creation the law affords for its enforcement. (Louisiana v. Police Jury, 111 U.S. 716, 4 S.Ct. 648.) To argue otherwise is to say that the right to possession, power to convey, and certainty of absolute ownership of real estate for six months is of no value. We think it needs no argument to convince this court that the right to possession and the rights incident to ownership of property for any period of time is a valuable right, and that any law subsequent which suspends those rights is a violation of the contract which created them, and is unconstitutional and void. (Bronson v. Kinzie, 1 How. (U.S.) 311; Phinney v. Phinney, 81 Me. 450, 10 Am. St. Rep. 266, 17 A. 405; Watkins v. Glenn, 55 Kan. 417, 40 P. 316; International B. & L. Assn. v. Hardy, 80 Tex. 610, 40 Am. St. Rep. 870, 26 S.W. 497; Hillebert v. Porter, 28 Minn. 496, 11 N.W. 84; Highland Port v. Detroit etc. Ry., 95 Mich. 489, 55 N.W. 382; McGee v. San Jose, 68 Cal. 91, 8 P. 641; Allen v. Allen (Cal.), 27 P. 30; S. C., 95 Cal. 184, 30 P. 213-215; Collins v. Scott, 100 Cal. 446, 34 P. 1085-1087; Goodale v. Fennell, 27 Ohio St. 426-431, 44 Am. Dec. 45; Maloney v. Fortune, 14 Iowa 417; Coddington v. Bispham, 36 N. J. Eq. 574; Mundy v. Monroe, 1 Mich. 68; Dikeman v. Dikeman, 11 Paige, 481-491; Gage v. Stewart, 127 Ill. 207, 11 Am. St. Rep. 116, 19 N.E. 702-704; 3 Am. & Eng. Ency. of Law, 751, note 2; Robinson v. Howe, 13 Wis. 341; Cooley's Constitutional Limitations, 1st ed., 346; Edwards v. Kearzey, 96 U.S. 595-607; Seibert v. United States, 122 U.S. 284, 7 S.Ct. 1190; Best v. Baumgardner, 1 L. R. A. 356, note 1.)

On the twenty-third day of April, 1893, Oscar Schuman and wife executed a note and mortgage to the Vermont Loan & Trust Company for the sum of $ 2,800. The note was due May 1, 1893. It provided for the payment of interest annually, at the rate of seven per cent per annum, on November 1st of each year. Default was made in the payment of interest which was due November 1, 1894. The mortgage was foreclosed, a decree of sale awarded, and the land was sold, by virtue of the decree, on the twenty-eighth day of March, 1895, pursuant to notice theretofore given according to law. The Vermont Loan & Trust Company, the mortgagees, became the purchasers. A certificate of purchase was thereupon issued to the said purchasers. The certificate was afterward sold and transferred to the plaintiff herein. On September 30, 1895, the plaintiff returns said certificate of purchase to the sheriff, tendering said sheriff his fee of three dollars for making a deed, and demanded a deed. The sheriff refused to make the deed, because one year had not elapsed since the sale. Said Schuman and wife refused to surrender said premises to this plaintiff. It also appears that they are insolvent. The plaintiff demanded judgment against the sheriff for $ 150 damages and costs of suit. The defendant demurred to this complaint, and gave, as a reason therefor, that it does not state facts sufficient to constitute a cause of action. The demurrer was overruled by the court. The defendant refused to plead further, and judgment was rendered against the defendant for $ 150 and costs of suit. The defendant appeals from this judgment to this court. Affirmed.

MORGAN, C. J. Sullivan and Huston, JJ., concur.

OPINION

MORGAN, C. J. (After Stating the Facts.)

The only question presented to this court is, Is the assignee or purchaser entitled to his deed at the end of six months from the date of sale, or must the mortgagor be allowed one year in which to redeem, under the amendment to section 4492 of the Session Laws of 1895, page 34, approved March 5, 1895. By this amendment to section 4492 the judgment debtor or redemptioner is given one year from the date of sale within which to redeem real estate sold under execution or decree of foreclosure. Under the law as it existed prior to this amendment, section 4492 gave the judgment debtor only six months within which to redeem such property. It is claimed by the respondent that the law referred to above does not apply to mortgages entered into before its passage, and that in this case the mortgagor has but six months in which to redeem from a sale under a decree, and that therefore he was entitled to his deed at the time the demand was made, to wit, on the thirtieth day of September, 1895. This amendment to the section not only affected the remedy given to the mortgagee, inasmuch as it prevents him from getting the ownership and possession of the mortgaged property as soon as he otherwise would by the law which was in force at the time the contract was made; it also gives the mortgagor an equitable estate in the land which, before the passage of this act, he did not have. In Bronson v. Kinzie, 42 U.S. 311, 1 HOW 311, 11 L.Ed. 143, the supreme court of the United States, in a similar case, in speaking of the laws of Illinois passed after the mortgage in that case was given, says: "As concerns the law of February 19, 1841, it appears to the court not to act merely on the remedy, but directly upon the contract itself, and to ingraft upon it new conditions injurious and unjust to the mortgagee."

It declares that, although the mortgaged premises should be sold under the decree of the court of chancery, yet that the equitable estate of the mortgagor shall not be extinguished, but shall continue for twelve months after the sale. If such rights may be added to the ordinary contract by subsequent legislation, it would be difficult to say at what point they must stop. The equitable interest in the premises may in like manner be conferred upon others, and the right to redeem may be so prolonged as to deprive the mortgagee of the benefit of his security, by rendering the property unsalable for anything like its value. This law gives to the mortgagor an equitable estate in the premises, which he would not have been entitled to under the original contract, and these new interests are directly and materially in conflict with those which the mortgagee acquired when the mortgage was made. Such modification of a contract by...