181 Ga. 266 | Ga. | 1935
On October 21, 1930, Lyman S. Peterson obtained a loan of about $700 from Atlantic Loan Company, of Fulton County, conveying as security therefor a tract of land situated in DeKalb County. The security deed referred to the loan company as parties of the second part, and provided that in case of default “said parties of the second part, or assigns, may enter upon said premises and collect the rents and profits thereof, and may sell the said property at auction at the usual place of conducting sales at the court-house in Fulton County, Georgia, to the highest bidder for cash, first giving notice of the time and place of sale and terms of sale, by advertisement once a week for four weeks, without regard to the number of days, in a' newspaper published in said county, all other notices being hereby waived by said party of the first part.” By an act approved March 28, 1935, the legislature undertook to regulate the manner of exercising powers of sale contained in security deeds, by providing, among other things, that the sale shall be advertised in the same manner as sheriffs’ sales, and shall be conducted in the county in which the land or a part thereof is located. .The act also purports to require confirmation of sales under powers, without legal process, and to limit the right to deficiency judgments in such cases. The complete act, including caption, is as follows:
“An act to provide for confirmation of sales under foreclosure proceedings on real estate, to limit and abate deficiency judgments in suits and foreclosure proceedings on debts secured by mortgage, security deeds, and other lien contracts on real estate, to provide for advertisement of foreclosure sales; and for other purposes.
“Section 1. Be it enacted by the General Assembly of Georgia, and it is hereby enacted by authority of the same, that from and after the passage of this act when any real estate is sold on foreclosure, without legal process, under powers contained in security deeds, mortgages, or other lien contracts, and at srrch sale said real*268 estate does not bring the amount of the debt secured by such deed, mortgage, or contract, no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within thirty days after such sale, report the sale to the judge of the superior court of the county in which the land lies, for confirmation and approval, and obtain an order of confirmation and approval thereon. The court shall require evidence to show the true market value of the property sold under such powers, and shall not confirm the sale unless he is satisfied the property so sold brought its true market value on such foreclosure sale. The court shall direct notice of the hearing to be given the debtor at least five days prior thereto, and at the hearing the court shall also pass upon the legality of the notice, advertisement, and regularity of the sale. The court may for good cause shown order a resale of the property.
“Section 2. Be it further enacted, that no sale of real estate under powers contained in mortgages, debt, deeds, or other lien contracts shall be valid unless the sale shall be advertised and conducted at the time and place and in the usual manner of sheriff’s sales in the county in which such real estate, or a part thereof, is located.
“Section 3. That all laws and parts of laws in conflict with this law be and the same are hereby repealed.” Ga. L. 1935, p. 381.
In April, 1935, Peterson filed a suit against Atlantic Loan Company, alleging that the defendant had placed an advertisement in the Northside Press, a newspaper published in Fulton County, Georgia, giving notice that because of a default by the plaintiff the loan company would, on April 29, 1935, after four weeks advertisement, sell the property in accordance with the terms of the security deed. The plaintiff in his petition invoked the provisions of section 2 of the act of March 28, 1935, and sought an injunction to prevent the sale as advertised. The plaintiff admitted in his petition that the defendant was proceeding in conformity to the power of sale contained in the security deed, but insisted that the subsequent act of the legislature was controlling, and that the defendant was violating this statute in the following particulars: (1) the sale is being advertised in a newspaper different from that in which sales by sheriffs are advertised; (2) the sale will not be had on the same day as sheriffs’ sales; and (3) the sale will be
As indicated in the preceding statement, the defendant challenged the act of March 28, 1935, on several grounds. Since we are of the opinion that the whole act is invalid as applied to the prior security deed, for the reason that its enforcement would unconstitutionally impair the obligations of such contract, we do not deem it necessary to consider the other questions raised. While under this record the defendant was directly concerned with section 2 only, it did not attack this section in particular, but in each ground of objection assailed the statute as a whole. In this state of the record, it is necessary to examine the act in its entirety, because if any part of it may be constitutionally applied to the contract in question, the attack embracing a mass objective only will necessarily fail, and the judgment against the plea should be affirmed. Theoretically the defendant’s position would have been safer if a separate objection had been made to section 2; and at the same time, in the view which we take of the case, a decision of the single question would have been sufficient under the present record. But after a consideration of the act as a whole, we are convinced that none of it may be constitutionally enforced as to contracts in existence at the time of its passage, and thus that the loan company should have prevailed in the court below.
We will first discuss the provisions of section 2, which, though remedial in form, would substantially alter a remedy given
Section 1 of the act in question not only incumbers the stipulated remedy, but directly affects a substantive right granted by the security deed. “The remedy subsisting in a State when and where a contract.is made and is to be performed is a part of its obligation, and any subsequent law of the State which so affects that remedy as substantially to impair and lessen the value of the contract is forbidden by the constitution, and is therefore void.” Edwards v. Kearzey, 96 U. S. 595 (24 L. ed. 793, 799). In Louisiana v. New Orleans, 102 U. S. 203 (26 L. ed. 132), it
The act of March 28, 1935, purports to be a permanent statute, and contains no reference to the financial depression. Whether emergency legislation to be operative during a limited period might be sustained as constitutional in this State is a question which we do not decide at this time, since the act under consideration, judged by its own terms, was not intended as a statute of that character. Cases dealing with such legislation are not in point in the solution of the case in hand. Cf. Home Building & Loan Asso. v. Blaisdell, 290 U. S. 398 (54 Sup. Ct. 231, 78 L. ed. 413, 88 A. L. R. 1481); Durham Realty Cor. v. LaFetra, 230 N. Y. 429 (130 N. E. 601, 16 A. L. R. 152); Block v. Hirsh, 256 U. S. 135 (41 Sup. Ct. 458, 65 L. ed. 865, 16 A. L. R. 165); In re People, 264 N. Y. 69 (190 N. E. 153, 96 A. L. R. 297). Nor do we now express any opinion on the question of whether the act which has been challenged in this ease may be applied as a valid law to contracts executed after its passage.
This court will not declare an act of the legislature unconstitutional unless the conflict between the act and the constitution is clearly manifest. If any reasonable construction can be placed upon the statute which will preserve its constitutionality, it is the duty of the courts to adopt such construction and refuse to declare
Judgment reversed.