176 N.W. 922 | N.D. | 1920
Lead Opinion
In 1916 the defendant purchased of the plaintiff certain real property situated in the city of Kenmare in this state, and received a contract for deed therefor. Under the laws then in force it was provided that in case default is made in the terms or conditions of a contract for the future conveyance of real estate, and the owner or vendor desires to cancel the same, “he shall, within a reasonable time after such default, cause a written notice to be served upon the vendee, purchaser, or his assigns, stating that such default occurred, and that said contract will be canceled or terminated, and shall recite
Under the terms of the contract in controversy the defendant agreed to pay to the plaintiff $18.27 on February 15, 1916, and $15 per month thereafter on the 15th day of each month, commencing on the 15th day of March, 1916, with interest at the rate of 8 per cent per annum from January 25, 1916. Defendant also agreed to pay all taxes levied upon the premises for the year 1915 and subsequent years. The defendant failed to make the payments due on August 15, 1916, and on the 15th day of each and every month thereafter. He also failed to pay any of the taxes assessed and levied against the premises. The plaintiff thereupon prepared a notice of cancelation as prescribed by the above-quoted statute, and caused the same to be served on defendant on November 28, 1917.' The notice stated the default which had occurred and the amount due upon the contract. It further stated that the plaintiff had elected to cancel and terminate the contract, and that such cancelation would take effect thirty days after the service of such notice upon the defendant. The defendant failed to make the payments, or in any manner cure the default existing in the terms of the contract, and on April 30, 1918, the plaintiff caused to bo served upon the defendant a notice
The plaintiff filed a written, verified complaint, wherein all tbe foregoing facts were fully averred. Tbe defendant, in bis answer, admitted tbe allegations of tbe complaint, but denied that tbe contract bad been canceled, and averred that be was tbe owner of tbe land. These allegations wore concededly based upon the contention that tbe notice of cancelation was insufficient for the reason that by virtue of chap. 151, Laws 1917, tbe time in which a purchaser or bis assigns must be afforded an opportunity to comply with tbe conditions of tbe contract and cure tbe default bad been extended to six months; and that inasmuch as tbe notice served in this case afforded only thirty days in which to cure tbe default it was of no effect. Tbe trial in tbe justice’s court resulted in a judgment in favor of tbe plaintiff. Tbe defendant thereupon appealed from, such judgment to tbe district court. In tbe notice of appeal it was specifically stated' that it was “tbe intention of tbe plaintiff to appeal, as aforesaid, on questions of both law and fact and from the whole of said judgment, and a new trial is demanded in said district court.” The trial in tbe district court resulted in findings and judgment in favor of tbe plaintiff, and tbe defendant has appealed from tbe judgment. No statement of case has been settled, and tbe case comes before this court upon tbe judgment roll proper. The trial court, in its findings, found all tbe facts heretofore stated.
Appellant contends:
(1). That tbe justice’s court was without jurisdiction to try tbe case, because tbe pleadings raised tbe issue of ownership of tbe premises.
(2). That inasmuch as tbe justice’s court bad no jurisdiction, the district court bad no jurisdiction, “because tbe pleadings on which tbe judgment was entered were tbe pleadings of tbe justice’s court.”
(3). That tbe mere service of the notice of cancelation did not cancel the contract, and that an action of forcible detainer does not lie until tbe contract is canceled.
(4). That in any event no sufficient notice of cancelation was served; i. e., that only thirty days’ notice was given; while tbe law required six months’ notice.
(1, 2) It is true a justice of tbe peace lias no jurisdiction to bear and determine a case wherein the boundaries of, or title to, real estate comes in question. Const. § 112. But the mere fact that such question is raised does not terminate the action or devest the justice of complete jurisdiction. Our statutes provide: “When such question arises upon a material issue joined ... or ... by controversy in the evidence as to a fact material to the determination of the issues in the action, the justice must discontinue the action and forthwith certify and transmit to the district court of his county all the pleadings and papers filed with him in such action. . . .” Comp. Laws 1913, § 9055. And “thereupon the district court shall have the same jurisdiction over such action as if it had been originally commenced therein. . '. .” Comp. Laws 1913, § 9056.
It is difficult to see wherein the answer presented any real issue as to title. It admitted all the facts which formed the basis of the action. The denial of title, and argument of ownership, were merely legal conclusions based upon the contention that the notice of cancelation was insufficient. But even though it be conceded that the answer presented an issue of title,—such as would have made it the duty of the justice to certify the case to the district court,—it would by no means follow that the district court was without jurisdiction to try and determine the issues presented by the pleadings. The action was brought into that court by a general appeal, wherein defendant demanded' a new trial of all questions of law and fact in the district court. The district court therefore became vested with the same jurisdiction over the action, and it became subject to trial therein in the same manner as though it had been originally commenced in that court. Comp. Laws 1913, § 9172. The appeal accomplished precisely the same purpose, so far as conferring jurisdiction upon the district court is concerned, that would have been accomplished in a proper case by certification by the justice. As was said by this court in Johnson v. Erickson, 14 N. D. 414, 105 N. W. 1104 (wherein it was held that the justice should have certified a case to the district -court) : “The same result has, however, been accomplished by the appeal, and the case has been transferred to the district court for trial. The district court would have acquired jurisdiction under a regular certificate by the filing of the papers, as
. (3) Section 8122, Comp. Laws 1913, as amended by chapter 180, Laws 1915, clearly contemplates that a contract for the future conveyance of real estate may be canceled and terminated by the method therein prescribed. Not only does that seem to be a reasonable inference from the portion of the statute heretofore quoted, but such intent is also clearly evidenced by the following provision: “In all cases of cancelation by notice of any such contract which has been recorded in the office of the register of deeds, a copy of the notice of cancelation served upon the vendee together with an affidavit of service and an affidavit of vendor or his assigns that the default of the vendee under the terms of the contract were not cured within thirty days from the date of service of such notice, shall be recorded in the office of the register of deeds.” Laws 1915, chap. 180.
Section 9069, Comp. Laws 1913, relating to actions of forcible detainer, provides that such action is maintainable, “when a party continues in possession . . . after the cancelation and termination of any contract for' deed, bond for deed or other instrument for the future conveyance of real estate or equity therein.” Comp. Laws 1913, § 9069, subd. 5.
Hence, we are of the opinion that an action of forcible detainer will lie where a contract for deed has been foreclosed in the manner provided by our statute. This view is in harmony with the opinions of other courts upon similar or kindred questions. See 39 Cyc. 1369; Monsen v. Stevens, 56 Ill. 335; Wilburn v. Haines, 53 Ill. 207; Jackson v. Warren, 32 Ill. 331; Leach v. Ritzke, 86 Ill. App. 483; Clark v. Bourgeois, 86 Miss. 1, 38 So. 187; Moak v. Bryant, 51 Miss. 560; McKissack v. Bullington, 37 Miss. 535; Kerns v. McKean, 65 Cal. 411, 4 Pac. 404; Gregg v. Von Phul, 1 Wall. 274, 17 L. ed. 536; Murphy v. McIntyre, 152 Mich. 591, 116 N. W. 197.
(4) It is conceded that plaintiff served a notice complying with the
To this contention plaintiff makes answer:
(1) That chapter 151, Laws 1917, was intended to apply to future contracts only, and that it was not intended to apply to contracts formerly made; and,
(2) That if the statute was intended to apply to contracts made prior to the enactment thereof, it is unconstitutional on the ground that it impairs the obligations of contracts.
By both the Federal and state Constitutions the legislature is forbidden to pass any “law impairing the obligation of contracts.” U. S. Const. § 10, art. 1; N. D. Const. § 16. While it is true that, “in placing the obligation of contracts under the protection of the Constitution, its framers looked to the essentials of the contract more than to the forms and modes of proceeding by which it was to be carried into execution,” and “left to the states to prescribe and shape the remedy to enforce it” (McCracken v. Hayward, 2 How. 608, 612, 11 L. ed. 397, 399), it is equally true that the legislature may not, under the guise of a statute relating to the remedy, change the substantial rights of the parties (12 C. J. 1067, 1068; 15 Am. & Eng. Enc. Law, pp. 1055, 1056; Blakemore v. Cooper, 15 N. D. 5, 4 L.R.A.(N.S.) 1074, 125 Am. St. Rep. 574, 106 N. W. 566; Cleveland v. United States, 93 C. C. A. 274, 166 Fed. 677). Under the constitutional inhibition against legislation impairing the obligation of contracts, it is immaterial whether the obligation of a contract is impaired by acting on the remedy or directly upon the contract. Impairment in either case is prohibited.' 6 R. C. L. p. 356. And “it is a fundamental principle
In bis work on tbe Constitution, Story said: “It is perfectly clear tbat any law, Avhich enlarges, abridges, or in any manner changes tbe intention of tbe parties, resulting from tbe stipulations in tbe contract, necessarily impairs it. Tbe manner or degree in Avhich this change is effected can in no respect influence tbe conclusions; for whether tbe law affect tbe validity, tbe construction, tbe duration, tbe discharge, or tbe evidence of tbe contract, it impairs its obligation, though it may not do so to tbe same extent in all tbe supposed cases. Any deviation from its terms by postponing or accelerating tbe period of performance which it prescribes, imposing conditions not expressed in tbe contract, or dispensing with tbe performance of those which are a part of tbe contract, however minute or apparently immaterial in their effect upon it, impairs its obligation.” Story, Const. 5th ed. § 1385.
Tbe Supreme Court of tbe United States has said:
“Tbe obligation of a contract includes everything within its obligatory scope. Among these elements nothing is more important than tbe means of enforcement. -This is tbe breath of its vital existence. . . . One of tbe tests tbat a contract has been impaired is tbat its value has by legislation been diminished. It is not by tbe Constitution to be impaired at all. - This is not a question of degree or manner or cause; but of encroaching in any respect on its obligation,—dispensing with any part of its force. Planters’ Bank v. Sharp, 6 How. 301, 12 L. ed. 447. Tbe remedy subsisting in a state when and Avhere a contract is made and is to be performed is a part of its obligation, and any subsequent law of tbe state which so effects that remedy as substantially to impair and lessen tbe value of tbe contract is forbidden by tbe Constitution, and is, therefore, void.” Edwards v. Kearzey, 96 U. S. 595, 24 L. ed. 793.
“It is also settled tbat the laAVS Avhich subsist at tbe time and place of tbe making of a contract ." . . . enter into and form a part of it, as if they were expressly referred to or incorporated in its terms. This, principle embraces alike those which affect its validity, construction, discharge, and enforcement. . . . It is competent for tbe
“The obligation of a contract, in the constitutional sense, is the means provided by law by which it can be enforced; by which the parties can be obliged to perform it. Whatever legislation lessens the efficacy of these means impairs the obligation. If it tends to postpone or retard the enforcement of the contract, the obligation of the latter is, to that extent, weakened. The Latin proverb, qui cito dat bis dad, he who gives quickly gives twice, has its counterpart in a maxim equally sound, qui serins solvit, minus solvit, he who pays too late pays less. Any authorization of the postponement of payment or of means' by which such postponement may be effected is in conflict with the Constitutional inhibition.” Louisiana v. New Orleans, 102 U. S. 205, 206, 207, 26 L. ed. 132, 133.
In applying these rules the Supreme Court of the United States has held that the law in force at the time a mortgage is executed, with all the conditions and limitations it imposes, is the law which determines the force and effect of a mortgage; and hence that changes in the laws imposing conditions and restrictions on a mortgagee in the enforcement of his right, and which affect its substance, are invalid as impairing the obligation, and cannot prevail. Von Hoffman v. Quincy, supra; Bronson v. Kinzie, 1 How. 311, 11 L. ed. 143; Brine v. Hartford F. Ins. Co. 96 U. S. 627, 24 L. ed. 858; Barnitz v. Beverly, 163 U. S. 118, 41 L. ed. 93, 16 Sup. Ct. Rep. 1042; Bradley v. Lightcap, 195 U. S. 1, 49 L. ed. 65, 24 Sup. Ct. Rep. 748. It has also held that a statute which extends the period of redemption, or gives a right of redemption, where no such right previously existed, impairs the obligation of mortgage contracts executed before its enactment. Barnitz v. Beverly, 163 U. S. 118, 41 L. ed. 93, 16 Sup. Ct. Rep. 1042; Howard v. Bugbee, 24 How. 461, 16 L. ed. 753; Gantly v. Ewing, 3 How. 707, 11 L. ed. 794;
In Bradley v. Lightcap, supra, the court said: “Confessedly subsequent laws, which in their operation amount to the denial of rights accruing by a prior contract, are obnoxious to constitutional objections.
In Bronson v. Kinzie, 1 How. 311, 11 L. ed. 143, the statute objected to gave the mortgagor twelve months to redeem after the sale, and Mr. Chief Justice Taney said: “It declares that, although the mortgaged premises should be sold under the decree of the court of chancery, yet that the equitable estate of the mortgagor shall not be extinguished, but shall continue for twelve months after the sale; and it moreover gives a new and like estate, which before had no existence, to the judgment •creditor, to continue for fifteen months. If such rights may be added to the original contract by subsequent legislation, it would be difficult to say at what point they must stop. . . . Any such modification of a contract by subsequent legislation, against the consent of one of the parties, unquestionably impairs its obligations; and is prohibited by the Constitution.”
In Barnitz v. Beverly, 163 U. S. 118, 41 L. ed. 93, 16 Sup. Ct. Rep. 1042, it was held that a state statute which authorized redemption of property sold in foreclosure of a mortgage where no such right previously existed, or extended the period of redemption beyond the time previously allowed, could not apply to a sale under a mortgage executed before its passage; and Mr. Justice Shiras, referring to Brine v. Hartford F. Ins. Co. 96 U. S. 627, 637, 24 L. ed. 858, 862, said:
“But this court held, through Mr. Justice Miller, that all the laws of & state existing at the time a mortgage or any other contract is made,*284 which affect the rights of the parties to the contract, enter into and become a part of it, and are obligatory on all courts which assume to give a- remedy on such contracts, . . . that it is therefore said that these laws enter into and become a part of the contract,” and that “ ‘the remedy subsisting in a state when and where a contract is made and is to be performed is a part of its obligation.’ ”
Let us apply the foregoing principles to the facts in this case. The contract in this case expressly provided that “in case of the failure of the said party of the second Jpart (defendant) to make either of the payments or perform any of the agreements on his part hereby made and entered into, this contract shall at the option of the party of the first part (plaintiff) be forfeited and terminated. . . . And further it is mutually agreed by and between the parties aforesaid that time shall be the essence of this contract.” Under the laws in force at the time the contract was made, it could not be canceled except upon the service of a written notice reciting the default and affording the purchaser a thirty-day period in which to cure such default. Both the vendor and the vendee contracted with reference to such statute, and its provisions in effect entered into and became a part of the contract. The purchaser knew that even in case of default the contract could not be terminated and his rights forfeited summarily,—the vendor must either maintain an action or he must pursue the method provided by the statute. In either case it was the policy of the law to afford the vendee the time specified in the statute in which to cure his default. Raad v. Grant, 43 N. D. 546, 169 N. W. 588. The vendor, on the other hand, knew that in case of default on the part of the purchaser he might cancel the contract by service of notice as provided by the statute, and in such case the ptirchaser would be required to cure the default; i. e., redeem within tire .thirty-day period. Under the new law (Laws 1917, chap. 151) the vendor is required to give, and the purchaser is entitled to have, a six-month period in which to cure the default. There is no room for doubt as to what the legislature intended. It was clearly the intention to give the purchaser a right which he did not possess under the then existing law. That is, the legislature intended to give a defaulting purchaser six months, instead of thirty days, in which to cure his default. The result is that if the new law is applicable to contracts executed before its enactment it would have the
Did the legislature intend this provision of chap. 151, Laws 1917, to apply to contracts formerly executed? We think not. We believe that the legislature intended that this provision should apply only to, and in effect become a part of, contracts made after the law became effective. Chapter 151, Laws 1917, by its terms amends § 8122, Comp. Laws 1913, and repeals all acts and parts of acts in conflict therewith. Section 8122 is—and of course chapter 151, became—a part of the Code of Civil Procedure. By the express words of our statutes, no part of the Code of Civil Procedure “is retroactive unless expressly so declared.” Comp. Laws 1913, § 7320. The statute just quoted is merely a declaration of a well-recognized general rule of construction. Por it is well settled “that statutes will be construed to operate prospectively only, unless an intent to the contrary clearly appears. It is said ‘that a law will not be given a retrospective operation, unless that intention has been manifested by the most clear and unequivocal expression.’ And in another ease: ‘The rule is that statutes are prospective, and will not be construed to have retroactive operation unless the language employed in the enactment is so clear it will admit of no other construction.’ The rule is supported by numerous cases. The rule is especially applicable where the statute, if given a retrospective operation, would be invalid, as impairing the obligation of contracts or interfering with vested rights. The principle that all statutes are to be so construed, if possible, as to be valid, requires that a statute shall never be given a retrospective operation, when to do so would render it unconstitutional, and the words of the statute admit of any other construction. It is always presumed that statutes were intended to operate prospectively, and all doubts are resolved in favor of such a construction.” Lewis’s Sutherland, Stat. Constr. 2d ed. § 642. See also 6 R. C. L. p. 78.
The supreme court of Minnesota says: “It is a well-settled rule that laws are not to be construed retrospectively or to have a retrospective effect, unless it shall clearly appear that it was so intended by the
It follows from what has been said that the judgment appealed front must be affirmed. It is so ordered.
Concurrence Opinion
I concur in the opinion of the Chief Justice.
The main legal question presented upon this appeal is whether chap. 151, N. D. Laws 1917, or § 8122, Comp. Laws 1913, applies to the foreclosure of the land contract involved.
Chapter 151, Laws 1917, which became effective as a law on July 1, 1917, provides for a period of six months after service of a notice of cancelation within which the vendee may redeem from the default or otherwise perform.
Section 8122, Comp. Laws 1913, provides only for a period of thirty days within which such redemption or performance may be had.
The land contract involved was made January 25, 1916. The notice of cancelation thereof was served November 28, 1917.
The defendant did not redeem or otherwise perform within the thirty-day period provided in § 8122, Comp. Laws 1913; the plaintiff predicates his title and right of possession to the land concerned by reason of compliance with the provisions of said § 8122, and the failure of the defendant to redeem under the terms thereof.
Chapter 151, Laws 1917, specifically provides that no provisions in any contract shall be construed to obviate the necessity of the notice of cancelation required (6 mos.), and that no contract shall terminate unless such notice be given, regardless of any provisions in the contract to the contrary.
The prime question involved therefore is,—
Does this act, concerning this period of redemption, apply retroactively, or prospectively, to any land contract then existing, or to any causes of action existing thereupon?
Chapter 151, Laws 1917, specifically amends § 8122, Comp. Laws 1913: By its terms, it repeals acts and parts of acts in conflict therewith. By the amendment of § 8122, such chapter 151 became a part of the Code of Civil Procedure. In this Code it is specifically provided (Comp. Laws 1913, § 7321) that no part of it is retroactive unless expressly so declared. See Blakemore v. Cooper, 15 N. D. 5, 19, 4 L.R.A.(N.S.) 1074, 125 Am. St. Rep. 574, 106 N. W. 566.
To the contention that this statute may be considered prospective and applicable to the right of redemption involved herein, upon the ground that such statutory period is merely remedial, and therefore that the statute is applicable, the answer is, that, concerning such period of redemption, the right to redeem or to compel redemption is more than remedial. It is a right connected with the contract, that may substantially impair or lessen its value. See Yeatman v. King, 2 N. D. 421, 424; 33 Am. St. Rep. 797, 51 N. W. 721; Fisher v. Bettz, 12 N. D. 197, 207, 96 N. W. 132; Blakemore v. Cooper, 15 N. D. 5, 17, 4 L.R.A. (N.S.) 1074, 125 Am. St. Rep. 574, 106 N. W. 566; Edwards v. Kearzey, 96 U. S. 595, 24 L. ed. 793; Wilder v. Campbell, 4 Idaho, 695, 43 Pac. 677; Goenen v. Schroeder, 8 Minn. 387, Gil. 344; O’Brien v. Krenz, 36 Minn. 136, 30 N. W. 458; Cargill v. Power, 1 Mich. 365. The question is not, whether a reasonable time has been afforded the parties within which to make or compel redemption, but, whether the statute, as applied concerning this period, would retroactively effect the right of either party to make or compel redemption in accordance with the contract and existing law at the time the same is made.
Under plain rules of construction, therefore, the usual presumption obtains that, this statute, being prospective in its operation with respect to the period of redemption, is not applicable.
The judgment should be affirmed.
Dissenting Opinion
(dissenting). The material facts in the case are as follows: The plaintiff sold defendant lot No. 7 of block No. 7 of .Tolley’s flat to Kenmare, North Dakota. The terms of the sale were expressed in a Avritten contract for deed, signed by both parties. The purchase price uvas $868.27, payable, $18.27 on February 15, 1916; $15 on or before March 15; and $15 on or before the 15th of each and every month thereafter until the whole sum was paid. The Avhole sum remaining due from time to time bore interest at the rate of 8 per cent per annum, payable on the 15th day of February, 1916, and on the 15th day of each and every month thereafter.
The vendee further agreed to pay the taxes and special assessments due at the time of the contract or to become due, commencing with the year 1915. . He defaulted in the payment of the sum due August 15, 1916, and the payment due on the 15th day of each and every month thereafter, and failed to pay the 1915 and 1916 taxes and the interest of the principal sum.
Plaintiff served a notice of the cancelation of the contract upon the defendant on the 28th day of November, 1917. It set forth the terms of the contract, the description of the lot, the default which had occurred in the contract, and the cancelation of the contract thirty days after the service of the notice. It does not appear that any payments Avere made after the service of the notice of cancelation by means of which the contract would be reinstated, and we assume there were none.
On the 30th day of April, the plaintiff served a notice upon the defendant, requiring him to remove from and vacate the premises in question within three days after the service of the notice upon him. The defendant did not remove from the premises.
On the 20th day of May, 1918, by a summons issued out of the justice court of John Lynch, J. P., the plaintiff commenced an action of unlawful detainer against the defendant. An affidavit of prejudice was filed against justice of the peace Lynch, and a change of venue demanded, which was granted, and the venue changed and transferred to the justice court of O. B. Davis.
Plaintiff filed proper written complaint in the action, setting forth the contract, its terms, the default, notice of cancelation, the notice to vacate and remove from the premises, and the failure of defendant to
The case came on for trial in the justice court, C. B. Davis, J. P., presiding. The defendant then objected to the jurisdiction of the court to hear and determine the action, upon the grounds that the pleading showed defendant owns the premises in question, that the alleged cancelation of contract was insiifficient and illegal, that the title to the premises is at issue, and demanded that the action be transferred to the district coxirt. The motion was denied. The defendant then interposed an answer, in which he admits the allegations of the complaint, but especially denies that the contract has been canceled in any manner whatsoever, or that any other person, except himself, is the owner of the land, and specifically alleges that he is the owner of the land ■described in the complaint.
Judgment was entered in the justice court on the 12th day of June, 1918, in favor of plaintiff, from which the defendant appealed to the district court in Ward county, where the case was retried, and on the 24th day of March, 1919, a similar judgment was entered in plaintiff’s favor, awarding it the possession and restitution of the premises and its costs and disbursements.
Prom this judgment, the defendant has appealed to this court. The •only error specified is that the court erred in ordering the entry of judgment herein.
One of the principal questions presented in the case is the sufficiency and legality of the notice of cancelation. It is one drawn and served in accordance with the provisions of § 8122, Comp. Laws 1913, as amended by chapter 180 of the Laws of 1915.
Under the above section as amended, the cancelation becomes effective thirty days after the notice of cancelation is served upon the defaulting vendee. The fifteenth legislative assembly passed an act which became effective July 1, 1917, entitled “Redemption Land Contract.” This act is similar in language to chapter 180 of the Laws of 1915, which amended § 8122, with the single exception that it allows, the vendee six months after the service of the notice of cancelation upon him, in which to perform the conditions or provisions of the contract upon which the default occurred, and upon such performance provides
The contract in question was executed, and was in force and effect prior to the act which became effective July 1, 1917, and the question presented for our consideration is, Which statute is applicable to the contract in question? The notice of cancelation having been served since the latest act became effective, should the notice have provided the contract would be canceled within six months after the service of the notice of cancelation upon the defendant in accordance with the terms of that law, or was it sufficient to give but thirty days’ notice of the cancelation as required by the amended Act of 1915 ?
We are of the opinion that the notice of cancelation should have been in accordance with the provisions of the law which became effective July 1, 1917.
The statutes under consideration, though they have no reference to actions or the time in which actions must be brought are nevertheless in the nature of statutes of limitations. Under either statute a period of time is specified after the service of the notice of cancelation, at the expiration of which, the cancelation becomes effective. In the 1915 Law, that period was thirty days; in the 1917 Law, it is six months.
That the legislature had authority to lengthen the time when cancelation should become effective, after the service of the notice, from a period of thirty days to a period of six months, there is not the least doubt, and, in doing so, the legislature would not impair any right of the respondent.
Statutes of limitation are constitutional, and do not impair the obligation of contracts, provided reasonable time is given within which to commence actions before the act takes effect. Hawkins v. Barney, 5 Pet. 457, 8 L. ed. 190; Wheeler v. Jackson, 137 U. S. 245, 34 L. ed. 659, 11 Sup. Ct. Rep. 76; Turner v. New York, 168 U. S. 90, 42 L. ed. 392, 18 Sup. Ct. Rep. 38; McCracken v. Hayward, 2 How. 608, 11 L. ed. 397.
The remedy upon a contract may be altered at will, by the state legislature, so long as reasonable provision for its enforcement is made. Antoni v. Greenhow, 107 U. S. 769, 27 L. ed. 468, 2 Sup. Ct. Rep. 91.
The legislature of a. state may modify existing remedies, and even
The existing remedy for the breach of the obligation of the contract may be changed without violating the contract clause of the Federal Constitution, so long as a substantial and efficacious remedy remains, even though the contract, so far as pertains to its obligation, may be of statutory origin. National Surety Co. v. Architectural Decorating Co. 226 U. S. 276, 57 L. ed. 221, 33 Sup. Ct. Rep. 17.
As we view the matter, chapter 151 of the Session Laws of 1917, in no manner contravenes § 10 of article 1 of the Federal Constitution.
The respondent maintains that the 1915 Law being in force at the time of the making of the contract, it became a part of it, and that, as a matter of right, he should be permitted to cancel the contract under the terms of that law.
As we view the matter, the respondent is confusing the subject of right with that of a procedural remedy.
Conceding that the procedural remedy to cancel the contract upon default by operation of law becomes a part of the contract, in the sense that, when a default has occurred, the procedural remedy, by cancelation, becomes operative, in this class of contracts, the procedural remedy which was effective at the time of the making of the contract is not necessarily the one which should be invoked when such default occurs, and it is desired to cancel the contract by reason thereof.
The procedural remedy which provides for the cancelation of a contract upon a default in its terms is, under any circumstances, harsh, and in the interest of justice should be liberally construed.
The law which fixed the time for the cancelation of the contract at thirty days after default and service of notice thereof does not confer a vested right in this class of contracts other than that the procedural remedy which is effective when such default occurs may he considered as within the contemplation of the contract. It should not be forgotten that the alleged right of cancelation of contract in this manner is neither an action nor a- proceeding at law. Neither is it a contract right in the sense that it confers a vested right. It is an arbitrary method only for the cancelation of the contract.
As it appears to us, no contract right of the plaintiff is impaired.
The creditor, if he has this right, by a mere notice terminates and disposes of all the vendee’s rights in the contract, though the defendant has a vested right in the property, which is the subject of the contract, and also has a further right to have his rights therein determined by a court of competent jurisdiction and power.
The arbitrary cancelation of the contract upon notice is a law which, in its terms and operation, is almost wholly for the benefit of the creditor, and takes but little note of the rights of the debtor. It is a law which enables rapacious creditors, by a mere notice, to confiscate the equity of the vendeo in the land. If valid at all, it should receive a most liberal construction, and where such a law is amended, as in the present case, to grant the debtor a longer period of time within which to make payment after such notice of cancelation is served, it amounts to no more than giving the debtor part of the right which he otherwise possesses; that is, the right of having the contract canceled by a decree of a court of equity.
i Assume that A owned 320 acres of land and sold it to B for an agreed price of $20,000, payable $1,000 at the date of the contract, and $1,000 on the 1st day of December each year thereafter, until the whole amount was paid.
Assume further that B had, each year, made his payment until he had paid $19,000 upon the contract; that he defaulted in the payment-of the twentieth payment, or the last $1,000. Does it seem just and equitable that B should, upon a thirty-day notice of cancelation from the creditor, have all his admittedly vested rights and interests in the land completely wiped out by this mere notice of cancelation?
If B’s rights may be thus terminated, is it done by due process uf
We think the law, which became effective July 1, 1917, was the one under the provisions of which the plaintiff should have served his notice of cancelation. That law is reasonable in its terms; it protects every interest of the plaintiff. It, in fact, takes no light away from him. It is no different from a similar preceding law, to which we have referred, except that it gives the debtor a little more time in which to make good his default. It should, we believe, apply to the cancelation of all contracts where cancelation is sought to be effected, after the time the law became operative.
We are of the opinion that the notice of cancelation, under consideration in this case, is bad, as not having been served in compliance with the provisions of the law in question, which became effective July 1, 1917.
Concurrence Opinion
I concur in the opinion as written by Mr. Justice Grace. The plaintiff commenced this action in justice court to dispossess the defendant of certain land which he holds under a contract of purchase. The pleadings raise a question of title to real estate and hence the justice had not jurisdiction. Const. § 112. A purchaser of land, in default, does not become a tenant, and he may not be dispossessed in a summary manner the same as a tenant holding over. The defendant having failed to make payment in accordance with the terms of the land contract, the plaintiff served on him a written notice to terminate the contract in thirty days. The notice is under the Laws of 1915, chap. 180, and not under Laws of 1917, chap. 151, which provides for a notice of six months. It is insisted that the latter stat
