116 N.W. 98 | N.D. | 1908
This action is here for trial de novo. The facts are stipulated, and in substance are as follows: On September 22, 1887, respondents executed and delivered to one Rusk S. Adams their promissory note for the sum of $600, due November 1, 1892, with interest at eight per cent until maturity, and twelve per cent thereafter, the interest to accrue thereon being 'represented by five coupon notes of $48 each, maturing on November 1st of each year thereafter until paid. On the same day, and to secure said notes, they executed and delivered a mortgage with the usual covenants upon the northwest quarter, section 10, township 129, range 57, in Sargent county, this state, which notes and mortgage were thereafter assigned to appellant, the present owner thereof. That respondents now are, and ever since the execution of said mortgage', have been the owners of the real property aforesaid. That no part of such indebtedness has been paid, except the two coupon notes,
It was the theory of the trial court, and it is respondent’s contention in this court, that by operation of chapter 5, page 9, Laws 1905, plaintiff’s cause of action became barred on July 1, 1905, being several months prior to the date the action was commenced. Chapter 5, page 9, aforesaid, was passed March 10, 1905, and not containing an emergency clause, it took effect on July 1st of that year. If this statute is held to apply to plaintiff’s cause of action and is constitutional, then the judgment below was correct, otherwise not. Prior to the amendment embraced in such statute plaintiff’s cause of action would not have become barred during the defendant’s absence from the state. Mortgage Co. v. Thresher Co., 14 N. D. 147, 103 N. W. 915, Mortgage Co. v. Flemington, 14 N. D. 181, 103 N. W. 929, and Paine v. Dodds, 14 N. D. 181, 103, N. W. 929; and Paine v. Dodds, 14 N. D. 189, 103 N. W. 931, 116 Am. St. Rep. 674. But by this amendment proceedings to foreclose real estate mortgages by action or otherwise were excepted from the provisions of the statute (Rev. Codes 1905, section 6796), which, in effect, provides for a suspension of the running of the statute during the debtor’s absence from the state. It is plain, therefore, that at no time prior to July 1, 1905, was plaintiff’s cause of action barred under the law, but on that day it became, and at all times since has been, barred by force of this amendment, provided, as before stated, that such amendment is held to apply to such cause of action, and provided, further, that the said statute is constitutional when thus construed. The case of Osborne v. Lindstrom, 9 N. D. 1, 81 N. W. 72, 46 L. R. A. 715, 81
The authorities are practically unanimous to the effect that, while the legislature may shorten the statutory period in which suits, including those on existing causes of action, may be commenced, it must as to such existing causes of action fix a reasonable time for the bringing of such suits thereon before the bar of such statute becomes effective, for otherwise the creditor would be deprived of his property rights in such causes of action without due process of law. As said by the Court of Appeals of New York in Gilbert v. Ackerman, 159 N. Y. 118, 53 N. E. 753, 45 L. R. A. 118: “There is no question as to the power of the legislature to pass or to shorten statutes of limitation. * * * The only restriction upon the legislature in the enactment of statutes of limitation is that a reasonable time be allowed for suits upon causes of action theretofore existing. Rexford v. Knight, 11 N. Y. 308; People v. Turner, 117 N. Y. 227, 22 N. E. 1022, 15 Am. St. Rep. 498. The question of reasonableness naturally and primarily is with the legislature, and when the question is brought before the court the surrounding circumstances are regarded in determining whether the legislature, in prescribing a period of limitation, has erred to the prejudice of substantial rights. The right possessed by a person of enforcing his claim against another is property; and if a statute ■ of limitations, acting upon that right, deprives the claimant of a reasonable time within which suit may be brought, it violates the constitutional provision that no person shall be deprived of property without due process of law.” See Clark v. Beck, 14 N. D. 287, 103 N. W. 755; also the recent case of Hathaway v. Merchants’ Trust Co., 218 Ill. 580, 75 N. E. 1060; 19 Am. & Eng. Enc. Law, 174, and cases cited; 6 Current Law, 466. Such is the almost universally recognized doctrine, the principle being so firmly settled that we deem further citation of authorities unnecessary.
This court in the Osborne case held that, while the legislature which passed the amendatory act there in question did not fix a reasonable time or any time in which suits might be brought upon existing causes of action, the 'act nevertheless applied thereto, for the reason, as stated by the court, that the preceding legislature in
We are not required in this case, however, to either affirm or reverse the Osborne Case on this point, as we do not consider said point at all decisive of this appeal, or necessarily involved, and therefore the majority of the members of the court express no opinion thereon either way. We are agreed that the amendatory statute cannot be held to apply to existing causes of action for two reasons: First, in the enactment of said statute the legislature fixed no time for the bringing of suits on such causes of action; and, second, conceding that it intended to and did fix such time, that the time thus fixed, was, as a matter of law, unreasonable.
The statute in question amended and re-enacted section 5210, Revised Codes 1899, which m substance prescribed that the running of the statute against bringing suits on all causes of action should
No mention is made of existing causes of action, and there is nothing in the law indicating a legislative intent to make such exception applicable thereto. It is perfectly apparent that no time for- bringing suits on existing causes of action was fixed by such amendment. That this was necessary in order that i't should apply to such causes of action is correctly settled in Osborne v. Lin-dstrom'and Clark v. Beck, supra, as well as by the overwhelming-weight of authority elsewhere. It is also equally well settled that such an amendment in the absence of a clear legislative intent to the contrary is presumed to be prospective, and not retrospective, in its operation. In Hathaway v. Merchants’ Trust Co., supra, the-supreme court of Illinois very recently said: “While it is undoubtedly within the power of the legislature to pass a statute of limitations, or to change the period of limitations previously fixed, and to -make such statute or changes applicable to existing causes of action, yet such a statute is not to be readily construed as having-a retroactive effect, but is generally deemed to apply merely to* causes of action arising subsequent to its enactment, and the presumption is against any intent on the part of the legislature to make-file statute retroactive. 19 Am. & Eng. Enc. Law, 174; Robertson v. Wheeler, 162 Ill. 566, 44 N. E. 870; Spaulding v. White, 173 Ill. 127, 50 N. E. 224. The statute will only be given a retroactive-effect, when it was clearly the intention of the legislature that it should so operate. Fisher v. Green, 142 Ill. 80, 31 N. E. 172. And even where this intention clearly appears, it will not be given effect, if to do so would render it unreasonable or unjust. * * * The presumption is that the legislature did not intend this law to be retroactive unless the contrary clearly appears. There is nothing in the amendment to indicate such an intention on the part of the legislature. Therefore the presumption must prevail that it was. not to be retroactive. The plaintiffs in error contend that there was about eight months after the act was approved and six months- and thirteen days after it took effect, within which the defendant in error could have filed its claim, this was a reasonable time, and that the new limitation should prevail. The act must be applied generally to all -claims and to all estates. A single claim or a single-
But conceding that the legislature in enacting the statute intended to make it retroactive as well as prospective in its operation, and also intended to and did fix the time between its enactment" and the date of its taking effect, July 1st, for the institution of proceedings on existing mortgages, still the time thus fixed was, as a matter of law, unreasonable, and hence the statute cannot be held to apply to foreclosure proceedings under mortgages which had matured prior to the enactment thereof. The time between these dates was but three months and twenty-one days. In -that short space of time it would be almost an utter impossibility, even if they, in fact, acquired knowledge of such law on the day it was enacted, for all persons, including residents and nonresidents, owning real estate mortgages on property in this state under which causes of action had accrued, to cause foreclosure proceedings to be instituted on all such mortgages. In considering the validity of such statute when applied to existing causes of action, it is both just and reasonable to assume, what we all know to be true as a matter of common knowledge, that a large per cent of such persons, especially nonresidents of the state, would not, in that short period of time, acquire knowledge -that such a vitally important statute to them had been enacted. One of the objects of the constitutional provision providing that no law shall take effect before July 1st, except in case of an emergency, no doubt was to give the people an opportunity during the intervening time between the date of the passage of the statute and July 1st thereafter to become acquainted with the provisions of such law; yet under the rule contended for the citizen as well as the nonresident is bound at his peril, not only to acquire knowledge of the statute, but to act m contemplation of the same before the taking effect thereof. These considerations have induced us to hold as above indicated. Having reached this conclusion, it becomes unnecessary to notice the other questions discussed in the briefs.
The judgment is reversed, and the district court directed to enter judgment in plaintiff’s favor for the relief to which it is entitled under the facts stipulated and the views above expressed.