Canadian & American Mortgage & Trust Co. v. Blake

24 Wash. 102 | Wash. | 1901

The opinion of the court was delivered by

Dunbar, J.

This was an action by respondent against appellants to foreclose a mortgage. The mortgage was executed February, 3, 1893, and suit to foreclose the same was commenced on the 2d day of May, 1899. The court decreed that the purchaser was entitled to immediate possession of the land to be sold, after sale. From this portion of the decree this appeal is taken.

The trial court held that § 15, ch. 53, Laws 1899, which provides that, in case of any homestead occupied for that purpose at the time of sale, the judgment debtor shall have the right of redemption without accounting for issues or value of occupation, was unconstitutional when applied to contracts executed prior to its passage. It is claimed that the decision by this court of the case of Wilson v. Wold, 21 Wash. 398 (58 Pac. 223), is decisive of the question involved in this appeal. That case does not seem to us to reach the question under discussion here. There there was no lien existing; it was simply a contract for money to be paid, and it was held that the law which provided that judgment debtors should be entitled to possession, and to the rents, issues, and profits of real property which was sold on execution, did not deprive a party who had sued upon an open account of any right or the enforcement of any remedy which the prior law had given him. But in this case the contract is with special reference to the property upon which the lien is established by the contract. We think the principles underlying this case have been decided by this court in the case of Bettman v. Cowley, 19 Wash. 207 (53 Pac. 53, 40 L. R. A. 815), and more directly in Swinburne v. Mills, 17 Wash. 611 (50 Pac. 489, 61 Am. St. Rep. 932), where the authorities which distinguished between a simple remedy, which it is within the legislative power to change, and a remedy which is a part of the obligation of the contract, a change of which can not be made without impairing and lessening the value of the contract, were collated and discussed at length. A re-discussion of these principles would not be beneficial. But we will refer again to one of the cases cited in Swinburne v. Mills, supra, viz., Barnitz v. Beverly, 163 U. S. 118, where the supreme court of the United States, after an exhaustive review of the questions involved, decided that a state statute which authorizes the redemption of property sold upon foreclosure of a mortgage, where no right of redemption previously existed, or which extends the period of redemption beyond the time formerly allowed, cannot constitutionally apply to a sale under a mortgage executed before its passage. As to existing contracts, tbe law of 1899 was unconstitutional and void. Tbe judgment is affirmed.

Reavis, O. J., and Fullerton and Anders, JJ., concur.