32 Ala. 713 | Ala. | 1858
This case presents the question, whether the redemption law of 1842, in its operation upon preexisting mortgages, is constitutional. If the effect of that
Our statute of 1825, allowing the redemption of real estate sold unde fieri facias is in every particular identical with that which' allows the redemption of land sold under a decree for the foreclosure of a mortgage. Clay’s Digest, 502, 503, §§ 1, 2, 3, 4, 5. In the case of Iverson v. Shorter, 9 Ala. 713, this court decided, that the operation of the statute upon sales made under execution did not impair the obligation of the contract, even though judgment was rendered and a lien had attached before the law went into force. That decision was reaffirmed in Beck v. Burnett, 22 Ala. 822. The question here is not distinguishable from that which was decided in Iverson v. Shorter. A sale under mortgage, when effected under a decree of foreclosure, is no more an obligation of the contract of mortgage, than is a sale under execution an obligation of the contract upon which the judgment at law is predicated. The sale under a decree for the foreclosure of a mortgage, and a sale under execution, are alike remedies for the enforcement of the contract.
Our decision of Iverson v. Shorter -was made after the decision of the supreme court of the United States in the case of Bronson v. Kinzie, 1 Howard, 311, and the latter is cited in the former. It thus appears, that our predecessors who decided the case of Iverson v. Shorter did not deem the decision in Bronson v. Kinzie as conclusive of this question. We cannot reconcile the two decisions. The decision in Iverson v. Shorter is a plain departure from the principle upon which the supreme court of the United States asserted, in Bronson v. Kinzie, the unconstitutionality of the statute of Illinois allowing a redemption of lands sold under a decree of foreclosure made before the passage of the act. There was a dissenting-opinion in that case by Mr. Justice McLean ; and in our opinion, that case is not sustained by the principle laid
It has been held, that laws relieving debtors from imprisonment for debt, exempting a portion of his property from execution, staying a sale under execution for one year unless the property was sold for two-thirds of its value, postponing the prior right of mortgages not recorded, increasing the period of advertisement antecedent to a sale under process, shortening to a reasonable extent the period of limitation, and the like, do not impair the obligation of contracts. We cannot perceive a ground for discrimination, upon principle, between the constitutionality of such statutes, and the Alabama statute of redemption. They all, perhaps, may affect to some extent the interests of the parties to the contract, by the modifications of the remedy; but there is, it seems to us, no just ground for a discrimination against our redemption laws, upon the question of the extent to which the interests of the party are affected.
If we concede the argument, that the power of the legislature to give such laws as we have mentioned an application to past contracts is referrible to the inherent right of a State to pass such laws as are essential to its police or internal economy, a decision against the constitutionality of the act now in question would not necessarily follow. The same principle would operate in favor of the constitutionality of the redemption law, quite as well
A decision by us against the constitutionality of the redemption law could not be revised .in the supreme court of the United States. Our decision in favor of its constitutionality can be. This court, since the decision in Bronson v. Kinzie, has taken a position in favor of the constitutionality of the laws, in their operation upon past contracts. That part of the decision in Bronson v. Kinzio, which has a direct application to this case, has not since been directly asserted by the supreme court of the United States; and the decision itself has never commanded the appi’oval of the entire court. We have a thorough conviction in favor of the power of the legislature to pass the law, and to give it application to existing contracts. For these reasons, we conclude to stand upon our decision in Iverson v. Shorter, and to permit the question to again go before the supreme court of the United States, if it is desired by the appellee.
The decree of the court below is reversed, at the costs of the appellee; and we proceed to render the decree -which we think the court below ought to have rendered, as fol