95 Cal. 184 | Cal. | 1892
Lead Opinion
Appellant received from the state a certificate of purchase for the lands described in the complaint, on March 28, 1860, and in August following assigned the same to one Collins, to secure an indebtedness of thirty dollars, and thereafter a patent was issued from the state to Collins. Appellant paid Collins the amount due him; and the latter, by request of appellant, conveyed the land to John H. Allen, who paid no consideration therefor. Respondents thereafter advanced to the appellant certain sums of money for the payment of taxes which had become delinquent, and to secure the repayment to them of said sums, the appellant, on June 12, 1869, caused said John H. Allen to convey the lands to them as security for the repayment of the money they had advanced. This deed was absolute in
1. The court below held that plaintiff’s cause of action was barred by the provisions of section 361 of the Code of Civil Procedure. That section provides: “ When a cause of action has arisen in another state or in a foreign country, and by the laws thereof an action thereon cannot be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this state, except in favor of one who has been a citizen of this state, and who has held a cause of action from the time it accrued.” It is claimed by appellant that under that section it was incumbent on the respondents to set out the facts upon which they rely, to show that the cause of action arose in the state of New York, and that under the laws of that state it was barred by the statute of limitations. A complete answer to this contention is found in section 458 of the Code of Civil Procedure, which provides: “In pleading the statute of limitations, it is not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barred by the provisions of section (giving the number of the section and subdivision thereof, if it is so divided, relied upon) of the Code of Civil Procedure; and if such allegation be controverted, the party pleading must establish on the trial the facts showing that the cause of action is so barred.” The rule thus established was intended to simplify the form of
“ Sec. 346. An action to redeem a mortgage of real property, with or without an account of rents and profits, may be brought by the mortgagor, or those claiming under him, against the mortgagee in possession, or those claiming under him, unless he or they have continuously maintained an adverse possession of the mortgaged premises for five years after breach of some condition of the mortgage.”
“ Sec. 351. If, when the cause of action accrues against a person he is out of the state, the action may be commenced within the term herein limited after his return to the state; and if, after the cause of action accrues, he departs from the state, the time of his absence is not part of the time limited for the commencement of the action.”
“ Sec. 2903. Every .person having an interest in property subject to a lien has a right to redeem it from the lien at any time after the claim is due, and before his right of redemption is foreclosed.”
In support of this contention, counsel for appellant say, in substance: “ Respondents’ action to foreclose could have been brought only in this state. The word return,’ as employed in section 351 of the Code of Civil Procedure, is applicable to persons coming from abroad, as well as to citizens who have left the state for a temporary purpose and returned thereto. The statute had
In the solution of the question presented as to the effect of the deed, we must read as a part of the contract the laws of this state existing at the time the contract was made (Klinck v. Price, 4 W. Va. 4; United States v. Crosby, 7 Cranch, 115); although the nature and the construction of the contract of loan, which was made in New York, are determined by the latter state. (De Wolf v. Johnson, 10 Wheat. 367.) It is true, an action to foreclose must be brought where the property is situated; but it does not follow that respondents could have maintained an action to foreclose at the time this suit was commenced. Both parties resided in the state of New York, where the contract was made, and -either could have maintained an action there on the contract. The plaintiff could have enforced his right to redeem, and the defendants could have recovered the amount for which they held the land as security. (Montgomery v. Sped, 55 Cal. 352; Kanawha Coal Co. v. Kanawha & O. Coal Co., 7 Blatch. 415; Gardner v. Ogden, 22 N. Y. 327; 78 Am. Dec. 192; Williams v. Fitzhugh, 37 N. Y. 444.) In this state, when an action on a promissory note, secured by mortgage of the same date upon real property,
Under the decisions just cited, section 346 of the Code of Civil Procedure is inapplicable, because it would effect a material change in the rights and obligations of the parties. (Phinney v. Phinney, 81 Me. 450; 10 Am. St. Rep. 266; Heyward v. Judd, 4 Minn. 483.) And for the same reason, Raynor v. Drew, 72 Cal. 307, and other and later cases declaring the rule stated in that section, are not in point. They are based upon that section of
It is claimed by the appellant that the finding of the court, “ that the cause of action stated in the complaint is barred by the provisions of section 361 of the Code of Civil Procedure,” is not supported by the evidence. The defendant introduced in evidence section 91, chapter 3, title 1, of Waite’s Annotated Code of Procedure of New York. It is not disputed that this section applies to personal actions, and supports the fourteenth finding of the court, “ that by the laws of the state of New York an action upon a verbal agreement for the payment of money is barred within six months after the cause of action accrues thereon, and the right of defendants to maintain any action against plaintiff to recover the said sum of five hundred dollars, as security for which the said deeds from Cox and John H. Allen were executed to them, has been barred by the laws of said state at all times since the twentieth day of November, 1874; and the right of defendants to maintain any action against plaintiff to recover the moneys advanced by them to him, as stated in finding No. 11, has been barred by the laws of said state at all times since September 13,1877.” But it is claimed that as the appellant’s cause of action is one to ascertain the amount due upon a mortgage, and that he may be permitted to pay the same and remove a cloud from his title, the section referred to does not apply to the case, but is governed by section 97, which provides that an action for relief not otherwise provided for must be commenced within ten years after the cause of action shall have accrued. As we have seen, however, as soon as the debt is barred the remedy upon the mortgage is lost. Respondents could not have maintained an action in New York for the recovery of the money due. They therefore could not maintain an action in this state to foreclose the mortgage, and the right to redeem was lost; and as the right to redeem and the right to maintain an action on the contract are reciprocal, the fourteenth finding of the court, which is not attacked, is
It is claimed that at the time the contract was entered into, it was the established rule in this state that a conveyance absolute in form, but intended merely as security, did not pass the legal title to the grantee. It is true, there had been decisions to that effect; but in the year following it was held (Espinosa v. Gregory, 40 Cal. 58, and Hughes v. Davis, 40 Cal. 117) that a deed absolute in form, intended as a mortgage, did convey the legal title. These decisions did not change the law; they simply declared what was the law. Every one is conclusively presumed to know the law, although the ablest courts in the land often find great difficulty and labor in finally determining what the law is. The courts cannot make or repeal a law. “ They can say what a law means; and if after-wards they see that-they have made a mistake, they can correct their error by an overruling of a former decision, the consequence of which overruling is that the blunder is thenceforward deemed never to have been law.” (Bishop on Contracts, sec. 569.)
It has been held here, that although it appears the parties have entered into a contract relying upon a previous decision of the supreme court, they would not be relieved from the obligations thereof because of a subsequent decision by the same court, overruling the former one, and declaring a different rule upon the same subject. (Kenyon v. Welty, 20 Cal. 637; 81 Am. Dec. 137.) There are some cases in which the supreme court of the United
We think that the case of Oullahan v. Sweeney, 79 Cal. 357, is distinguishable from the case at bar. The amendment therein referred to simply required the purchaser of property sold for delinquent taxes to serve upon the owner of the property a notice stating that the property had been sold for delinquent taxes, the date of the sale, the amount forwhich it was sold, the amount then due, the time when the right of redemption would expire, and when the purchaser would apply for a deed. This requirement was a mere incident to the right of the purchaser to receive a deed; it merely prescribed the manner in which he should proceed to demand the deed to which he was entitled. It was conceded, “ for the purposes of the case, that the legislature cannot make an absolute extension of the time for redemption of property previously sold.”
We think the court below held the right view of the case, and the judgment and order are therefore affirmed.
McFarland, J., Harrison, J., Garoutte, J., and Ds Haven, J., concurred.
Sharpstein, J., concurred in the judgment.
Dissenting Opinion
—According to the opinion of the court, the plaintiff’s action was barred by section 361 of the Code of Civil Procedure, because, and only because, an action by defendants to foreclose would have been barred by said section. I am not satisfied with the
. That the right to redeem and the right to foreclose were barred at the same time was undoubtedly the law of this state prior to the codes; but since they were enacted, the right to redeem is unaffected by the extinguishment of the right to foreclose. (Code Civ. Proc., sec. 346; Civ. Code, sec. 2903; Raynor v. Drew, 72 Cal. 310; Booth v. Hoskins, 75 Cal. 271; De Cazara v. Orena, 80 Cal. 134; Hall v. Arnot, 80 Cal. 354; Warder v. Enslen, 73 Cal. 291.) In other words, the codes have prescribed another rule for the limitation of actions to redeem from mortgages and other liens. By the old rule, the right to redeem was barred when the right to foreclose was barred; and whether this resulted from the fact that each was covered by the same clause of the statute, or from the equitable doctrine of mutuality of rights and remedies under such contracts, the rule itself had no other effect than to fix a period of limitation to the right to redeem. This rule has been changed, and the period of limitation enlarged by a law passed since the making of the contract here involved, but before the right of action of either of the parties had been lost, and before the commencement of this suit. The question therefore is, which rule applies, — the old of the new.
That these provisions of the codes were intended to apply to all actions commenced after they took effect is to my mind perfectly clear. It is true, the codes are not retroactive (Oiv. Code, sec. 3; Code Civ. Proc., sec. 3), and it is also true that vested rights should never be impaired by giving a retroactive effect to a law. But a law enlarging the period of limitations upon existing contracts is not a retroactive law, and it impairs no vested rights. Unless restricted in its operation by its own terms, a new rule of limitations necessarily applies to all actions thereafter commenced, and to all causes of
In section 6 of the Civil Code we find the following provision: “No action or proceeding commenced before this code takes effect, and no right accrued, is affected by its provisions.” Section 8 of the Code of Civil Procedure contains the same language. The clear implication is, that actions not commenced and rights not vested prior to the adoption of the codes are to be controlled by their provisions.
The more specific provision respecting the application of the new rules of limitation is found in section 362 of the Code of Civil Procedure, and is as follows: “ This title does not extend to actions already commenced, nor to cases where the time prescribed in any existing statute for acquiring a right or barring a remedy has fully run, but the laws now in force are applicable to such actions and cases, and are repealed subject to the provisions of that section.” Here the implication is equally clear that the new rules apply to all actions not already commenced, and to all cases where the time prescribed by existing statutes for barring the remedy has not fully run. In this case the time had not run, and the action had not been commenced. The conclusion, therefore, cannot be avoided, that the rule of the code applies unless its application would have the effect of changing the contract or impairing its obligation.
The respondents contend and the court holds that such would be its effect. They say that the law of the state of California, as it existed at the date of their deed from John H. Allen, defining the mutual rights and obligations of the parties to the transaction, entered into and became a part of the contract, and that such law gave them, the respondents, an important right which the above-cited provisions of the codes would take away
The completeness of this argument is marred by the fact that it assumes too much for the law of California before the codes. The decisions relied on by respondents do not go to the extent claimed for them. The cases cited are Hughes v. Davis, 40 Cal. 117; Espinosa v. Gregory, 40 Cal. 58; Pico v. Gallardo, 52 Cal. 206, etc. A critical examination of this line of decisions will show that the only case in which a mortgagee by deed absolute could acquire an indefeasible title to the mortgaged estate without foreclosure was when he had possession. This was the case in Espinosa v. Gregory, 40 Cal. 58. The mortgagee was in possession, the right to foreclose was barred, and it was held that the mortgagor had thereby lost the right to redeem. The mortgagee got the land without foreclosure. But in Hughes v. Daviss
Mow, what right of these respondents, under the law as declared in the cases referred to, would be taken ■ away or impaired by sustaining plaintiff's action to redeem? They never had possession of the mortgaged premises, and had no right to the possession. If, after their right to foreclose was barred,— if it ever was barred,— they had anticipated the plaintiff in taking possession of the land, their title might thereby have become perfect, under the doctrine of Espinosa v. Gregory, 40 Cal. 58, but if plaintiff had anticipated them in taking possession, their only remedy would have been to sue in ejectment, in which case he could have set up his equity and effected a redemption according to the doctrine of Pico v. Gallardo, 52 Cal. 206, upon precisely the same terms that can be imposed in this action. The only difference between this case and the case supposed is that plaintiff, without taking possession and without waiting to be sued, offers the respondents in advance all that he would be compelled to pay in order to redeem if he had taken possession and waited for them to sue. To allow this would surely not be to deprive the respondents of any valuable right.
Enough has been said, I think, to show that respondents never brought themselves within the rule of Espinosa v. Gregory, 40 Cal. 58, because they never had possession of the land; but if the fact had been otherwise, all the decisions of this court are to the effect that a law
In the briefs of counsel a large number of decisions are cited from the reports of other states, bearing more or less directly upon this point, with respect to which it can only be said that they are so conflicting as to furnish no ground for reversing our own decision in Oullahan v. Sweeney, 79 Cal. 539.
A decision on this point by the supreme court of the United States would of course be binding authority, as the immunity asserted arises under the constitution of the United States; but no such decision has been cited. What was said by Judge Taney in Bronson v. Kinsey, 1 How. 316, has been pronounced obiter, and its authority denied by this court. (See dissenting opinion of Judge Heydenfeldt in Thorne v. San Francisco, 4 Cal. 156, adopted in Moore v. Martin, 38 Cal. 438.) Of the cases cited in the Department opinion heretofore filed, that of Phinney v. Phinney, 81 Me. 450, 10 Am. St. Rep. 266, comes nearer than any other to sustaining the contention of respondents; but even that might be distinguished, for the law there held unconstitutional was one by which the equity of redemption could be indefinitely extended at the suit of a stranger to the mortgage.
Finally,- it may be said that if the doctrine under discussion is to control the decision of this case, it may be
For these reasons, I conclude that the finding of the superior court that plaintiff's cause of action was barred by section 361 of the Code of Civil Procedure is not sustained by the evidence, and therefore, that a new trial should have been granted, and that the order appealed from and the judgment should be reversed, and the cause remanded for a new trial.