Davidson v. Richardson
50 Or. 323
Or.
1907
Check Treatment
Mr. Justice Eakin

delivered the opinion of the court.

1. In the original opinion we rested the ease exclusively upon the fact that the legislature has control over the liens of judgment's, and that, in this ease, the effect of the enlargement of the dower estate was only a withdrawal of property from the lien of the judgment to the extent of the increase of the dower estate. It is insisted, however, that the effect of the amended statute increasing the dower estate, is to deprive the defendant of his remedy by execution by withdrawing a portion of the debtor’s property from liability, and that this impairs the obligation of his contract,' and we must concede that this is the effect of the amendment.

The ease of Watson v. New York Cent. R. Co. 47 N. Y. 157, cited in the opinion, holds that the lien is subject to the control of the legislature, but it was further suggested that, though the legislature could authorize the appropriation of the land for public use free from the lien, yet the compensation paid therefor was still subject to execution; that is, the legislature did not put the debtor’s property beyond the reach of his creditor. The right to the lien relates to the remedy, but the right of the creditors of a debtor to avail themselves of his property at all events for the satisfaction of his debts, is not a question of remedy, but of right. The case of McCormick v. Alexander, 2 Ohio, 65, quoted in the opinion, and eases cited thereunder, *326only hold that the lien is subject to the control of the legislature, but do not go to the extent of holding that the debtor’s property may be exempted from existing debts. Edwards v. Kearzey, 96 U. S. 595 (24 L. Ed. 793), relates to the creation of a homestead exemption, which withdrew the property not only from the lien of judgments, but also from liability to execution, and there it is held to impair the obligation of the contract. This is also the effect of Gunn v. Barry, 15 Wall. (U. S.) 610, 622 (21 L. Ed. 212). The facts in the case of Patton v. Asheville, 109 N. C. 685 (14 S. E. 92), are parallel with those before us, so far as it affects this question, and it was held that the act of the legislature enlarging the dower estate impaired the obligation of the contract. In that ease there was no lien in favor of the creditor, but under the law at that time, the property of a debtor was subject to the payment of his debts, and the statute enlarging the dower, having the effect to 'withdraw a portion of the debtor’s property from levy and sale, was void as to such debts contracted prior.to the statute, and we conclude, without reference to the power of the legislature to modify or abolish the lien of a judgment, if the property of the debtor, or a material portion thereof, is withdrawn from the reach of pre-existing creditors, it thereby impairs the obligation of such contracts. That was the effect of the enlargement of the dower estate before us, and such statute cannot affect defendant’s judgment; and the decision of this court heretofore rendered in this ease as to the effect of this statute must be set aside.

2. It appears, however, that when the confession of judgment by Wm. M. Davidson on November 9, 1892, was executed and entered by the clerk, no judgment was entered thereon, but it was entered upon the judgment docket upon that date, and on July 7, 1897, execution was issued thereon and sale of the lands in question was had thereunder on August 14, 1897. Afterwards, on December 5, 1898, by order of the said court, such judgment was entered nunc pro- tunc, as of November 9, 1892, and plaintiff insists that such entry of judgment is not *327retrospective as against plaintiff’s interests, and that she is entitled to dower under the statute of 1893. The office of a nunc pro tunc entry is to record some act of the court done at a former term which was not then carried into the record; and such entry is retrospective and has the same force and effect as if entered at the time when rendered, except as to third parties having intervening rights: Cleveland Leader Print. Co. v. Green, 52 Ohio St. 487 (40 N. E. 201: 49 Am. St. Rep. 725); McNamara v. N. Y., L. E. & W. R. Co. 56 N. J. Law, 56 (28 Atl. 313); Ferrell v. Hales, 119 N. C. 199 (25 S. T. 821). It was held in Doughty v. Meek, 105 Iowa, 16 (74 N. W. 744: 67 Am. St. Rep. 282), that such entry validates all prior proceedings, including the issuing of execution: Los Angeles Bank v. Raynor, 61 Cal. 145; Emrich v. Gilbert Mfg. Co. 138 Ala. 316 (35 South. 322); Lowenstein v. Caruth, 59 Ark. 588 (28 S. W. 421). Although such entry validates the execution issued therein, it could not operate to create a lien from a date earlier than its actual entry to affect intervening rights of third parties: McNamara v. N. Y., L. E. & W. R. Co. 56 N. J. Law, 56 (28 Atl. 313). As between Richardson and Davidson, the nunc pro tunc entry is retrospective, and has the same force and effect as if entered at the time the judgment was rendered (Freeman, Judgments (3 ed.), § 67), and, unless they have rights intervening prior to the date of such entry, its effect cannot be questioned by third parties.

3. Plaintiff’s interest in the land on December 5, 1898, the date of the entry of the judgment, was not such as to make her an intervening party within the meaning of the law. Her inchoate right of dower was increased by the legislative act, but she did not act upon conditions then existing, nor did she pay value or otherwise change her condition upon faith in the record, but was only a possible beneficiary under the statute. We understand that, to be protected from the effect of the nunc pro tunc entry, plaintiff must have been in the position of a bona fide purchaser for value: Freeman, Judgments (3 ed.), *328§§ 66, 67; Leonard v. Broughton, 120 Ind. 536 (22 N. E. 731: 16 Am. St. Rep. 347, 355). In this case it is held:

“It appears, from the fact averred, that the judgments in favor of the appellants were rendered upon pre-existing obligations. Their rights were fixed prior to the rendition of the judgments, and it does not appear that they were misled, or that they parted with anything of value, or acquired any rights during the interval which elapsed between the date the judgment should have been properly entered and the making of the nunc pro tunc entry, except that they acquired a judgment lien; and the rule is that the general lien of a judgment creditor upon lands of his debtor is subject to all equities existing against the lands of the judgment debtor in favor of third persons at the time of the recovery of the judgment.”

However independent of the effect of the entry of the judgment, the contract between Richardson and Davidson is the thing protected by the constitution, and the act increasing the dower is void as to. such contract without reference to the entry of1 judgment or the creation of a lien, and therefore it is immaterial whether plaintiff’s inchoate rights under the dower act can be affected by a nunc pro tunc entry or not. Defendant’s right antedates the judgment and is such that the legislature cannot impair it, and plaintiff cannot complain of the nunc pro tunc entry, as the dower statute is without effect as to defendant’s contract, regardless of the judgment: Patton v. Asheville, 109 N. C. 685 (14 S. E. 92); Edwards v. Kearzey, 96 U. S. 595 (24 L. Ed. 793); Bronson v. Kinzie, 42 How. (U. S.), 311 (11 L. Ed. 143); Gunn v. Barry, 15 Wall. U. S.), 610 (21 L. Ed. 212).

Therefore, the decision of this court heretofore rendered must be set aside, and the decree of the lower court is hereby modified as follows: That the plaintiff is entitled to dower in the lands described in the complaint to the extent of one-third part thereof, and the cause will be remanded to the lower court, with directions to proceed with the assignment .of such dower in manner provided by law.

Modified and Remanded.