| S.C. | Apr 15, 1889
Lead Opinion
The opinion of the court was delivered by
The sole inquiry raised by this appeal is as to the proper construction of the act of 1879 (17 Stat., 167), entitled “An act to declare the law in relation to liens on real estate,” incorporated in the General Statutes as section 1831. That section reads as follows : “No mortgage or deed having the effect of a mortgage, no judgment, decree, or other lien on real estate, shall constitute a lion upon any real estate after the lapse of twenty years from the date of the creation of the same : Provided, that if the holder of any such lien or liens as aforesaid shall, at any time during the continuance of such lien, cause to be recorded upon the record of such mortgage, deed having the effect of a mortgage, or shall file with the record of such judgment, decree, or other lien, a note of some payment on account or some written acknowledgment of the debt secured thereby, with the date of such payment or acknowledgment, such mortgage, deed having the effect of a mortgage, judgment, decree, or other lien, shall be and continue to be a lien for twenty years
This pi’ovision thus inserted in the General Statutes of 1882 is, in substance and effect, identical with that found in the act of 1879; for although the phraseology of the second proviso was altered, yet such alteration did not affect the substantial meaning. In the act of 1879, the language of that proviso is: “That nothing herein contained shall be construed to affect the duration of the liens of judgments as prescribed by the fourteenth section of an act entitled ‘An act to alter and amend the Code of Procedure, being title V., part III., of the General Statutes,’ approved March 8, 1875,” which act was a mere repetition in toticlem verbis of the act of 1873 (15 Stat., 495), and was passed under the unfounded apprehension, as it proved (Arnold v. McKellar, 9 S. C., 335), that the act of 1873 had failed to become a law. Now, as section 14 of the act of 1875 was, so far as the duration of the lien of a judgment is concerned, substantially the same as section 310 of the Code as it read in 1882, the only difference being in certain changes in the phraseology rendered necessary by the difference in the dates of the two enactments, it seems to me that there is no substantial difference between the second proviso as found in the act of 1879, and as it is expressed in section 1831 of the General Statutes of 1882.
The obvious effect, therefore, of this proviso, whether read as it is found in the act of 1879 or in section 1831 of the General Statutes, was to exempt all judgments recovered after the adoption of the code from the operation of the legislation found in the preceding part of the act or section; for it expressly declares “that nothing herein contained shall be construed to affect the duration of the liens” of such judgments. It cannot be construed either to extend or limit the duration of the lien of such judgments, for to do either would be to affect the duration of the lien, and that is expressly forbidden.
As I understand, it is conceded that the act of 1879 could not affect the duration of the lien of judgments recovered between the adoption of the code and the passage of the act of 1879, but it is
If, therefore, the act of 1879 cannot be applied to judgments recovered after the adoption of the code, the intention must necessarily have been to refer to those recovered prior to the adoption of the code, for there are none others to which it could apply ; and the terms of the act itself show that such was the intention of the legislature, for they were manifestly dealing with such judgments as had a lien for as long a period as twenty years, and awtc-code judgments were the only judgments which ever had a lien for that length of time, and they must necessarily have been the class of judgments to which the legislature referred ; and the only class, as all others are expressly exempted from the operation of the act. It is true that this view' gives the act a retroactive effect; and it is equally true that the well settled rule is that a statute must never be given a retrospective operation unless such a construction is required by the express terms of the .statute or
If, then, the intention of the legislature was that the act should be retrospective, it will only be necessary to inquire whether it is within the power of the legislature to pass such an act. There is nothing in the constitution of the Hnited States or of this State which forbids the general assembly from passing a retrospective act, provided such act does not impair the obligation of a contract, or divest vested rights resting on contract, or vested rights of property. McLure v. Melton, 24 S. C., 570, and the cases there cited. The simple fact, therefore, that the act is retrospective does not render the act unconstitutional. Hence before the act can be declared unconstitutional, which all the authorities declare can only be done in a clear case, it must appear that the necessary effect of the act is to impair the obligation of a contract, or divest some vested right resting on contract, or some vested right of property. If, therefore, any construction can be placed upon the act which will not effect any of those results, it seems to me that .it is the duty of the court to adopt such construction.
To determine this question it is necessary to inquire into the scope, purport, and object of the act; and for this purpose we must ascertain what was the old law which this act was designed to amend. Conceding that under that law there was no limit to the duration of the lien of a judgment or mortgage, yet it was well settled that after the lapse of twenty years the debts secured by such liens wTere presumed paid and thus the liens were extinguished, but still such presumption could be rebutted by proof of some payment on account, or some such positive acknowledgment as would imply a promise to pay. This being the state of the law. it seems to me that the object of the act was not to limit the duration of such liens, but simply to declare (and it is noticeable
It seems to me that this is the proper construction of the act; and, at all events, it is capable of such a construction; and if so, then, with a view to avoid a conflict with the constitution, it is the duty of the court to adopt such construction. All the authorities agree that the right to have one’s controversies determined by the rules of evidence existing at the time the contract is entered into is not a vested right, and therefore may be changed by retroactive legislation without any violation of the constitution. Goal. Gon. Lim., 367-8, and 288, with the cases there cited. See also Endlich on Interpretation of Statutes, section 284, especially the notes on pages 383-4, where many cases sustaining the proposition stated are cited. It there appears that after the passage of Lord Tenterden’s act requiring that the promise relied upon to bar the statute of limitations must be in writing, it was held that such legislation was applicable to pre-existing contracts. This is, in principle, identical with the present case. It is true that some of the cases hold, and perhaps rightly, that such legislation cannot be applied to a pre-existing contract, unless a reasonable time has been afforded the party to be affected thereby, to conform to the requirements of the new law ; but even conceding such a qualification of the rule, there is nothing to prevent its application here, for the appellant certainly had a
Under this view of the case, the important and interesting question (as to which a good deal might be said) whether an act limiting the duration of the lien of a judgment can be applied to pre-existing judgments without a violation of the constitution, does not arise. Nor is it necessary to consider the effect of the act of 1886 (19 Stat., 229), amending section 310 of the Code.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.
Dissenting Opinion
dissenting. Samuel G. Henry, the defendant, on the 27th February, 1867, confessed a judgment to John P. Henry, and execution was issued thereon immediately thereafter. Nothing more was done, however, until October 17, 1887, 20 years and 7 months after the confession was entered as above, when proceedings were instituted to renew said execution, upon which an order was obtained renewing the same by consent of defendant, who accompanied the summons served upon him with an affidavit stating that said debt was founded upon a bona fide and valuable consideration; that he had frequently acknowledged it during the past twenty years as a bona fide debt with lien on his real estate, and as remaining wholly due and unpaid. Shortly thereafter the real estate of the defendant was sold under this execution, and another issued on the Watkins judgment, in the office of the sheriff at that time, to Mr. Crawford, the attorney of the plaintiff, who claimed to have his bid credited on the aforesaid judgment. This the sheriff declined to allow, inasmuch as still another judgment, known as the Hornsby judgment, of prior date to the Watkins judgment, was found in the office, which claimed the proceeds of the sale, on the ground that the renewal of the execution of plaintiff in October, 1887, more than 20 years after the entry of the judgment was illegal, the judgment having been barred by the lapse of time ; that said Hornsby judgment should have the proceeds of the sale over the
Upon the sheriff being ruled and the matter coming up before his honor, Judge J. B. Kershaw, an order was granted discharging the rule, with $10 costs; his honor holding that the act of December 24, 1879, now section 1831, where it is declared, “That no mortgage or deed having the effect of a mortgage, no judgment, decree, or other lien on real estate, shall constitute a lien upon any real estate after the lapse of twenty years from the date of the creation of the same,” applied to the case and controlled it.
The appeal alleges error to his honor : 1st. That he erred in holding that section 1831, General Statutes, applied to the case, thereby giving said act a retroactive effect. 2nd. If it was intended to have a retroactive effect, “then it was null and void, for the reason that, in so far as it affected the question at bar, there was a divesting of vested rights.”
The questions before us are, did the act — section 1831, supra — have a retroactive effect ? And if so, would its operation be to divest vested rights if held valid ?
Under the old law before the recent war between the States, there was no limit of time as to the lien of judgments. When once obtained and attached by a proper entry of the judgment, the lien continued until the judgment was paid either actually or by a conclusive presumption arising from the lapse of time, which usually took place by the running of twenty years ; or at least a period of twenty years with nothing done in the meantime, gave such an artificial force to a presumption of payment, that it was held conclusive, unless overthrown by extraordinary circumstances, such as would check the statute of limitations and prevent it from being a bar to the recovery of a debt, subject to said statute. Now, in this case the question whether the presumption of payment had assumed this artificial character, and whether, if so, the facts relied on were sufficient to overthrow it, did not ai’ise, and it was not passed upon by his honor. But the case was decided upon the ground that section 1831, General Statutes, had repealed the old law, and expressly.in totidem verbis provided that no judgment, whether under the old law or the present
Now, while it is true that the general assembly may pass retroactive laws when they do not impair the obligation of contracts nor divest vested rights, yet the intention to be retroactive must appear clearly and distinctly. In fact, the rule seems to he, as derived from the weight of the decisions and utterances from judicial writers, as is said by Mr. Endlich : “That even in the absence of constitutional obstacles a construction giving to a statute a prospective operation is always to be preferred, unless a purpose to give it a retrospective force is expressed by clear and positive command, or to be inferred by necessary, unequivocal, and unavoidable implication from'the words of the statute taken by themselves and in connection with the subject matter, and the occasion of the enactment, admitting of no reasonable doubt, but precluding all question as to such intention.” End. Interp. Stat., § 271. Examining section 1831 under the light of this rule, we certainly find no express words giving it any retrospective effect, nor can this be inferred by a “necessary, unequivocal, and unavoidable implication” from any words used therein.
But it is asked if the section does not refer to these older judgments, what does it refer to ? It must be remembered that this section is taken from the act of 1879. At that time the act of 1873, in reference to the lien of judgments, had been passed and was then of force. This act had provided that judgments should have lien only for 10 years, with the right of renewal within three years after the 10, with like lien as the original for 10 years, and so on, we suppose, ad infinitxim. But this act of 1873 was expressly limited to judgments obtained since 1870. It left old judgments obtained before that time untouched and under the old law. Now, where is the difficulty in applying section 1831 to judgments obtained after the passage of the act of 1879, wherein this section was first enacted, thus making it entirely prospective, and thus leaving judgments as to their liens obtained under the old law and those obtained under the act of 1873 intact, and to be governed by the law as it stood when said judgments were ob-
And, besides, we think there is foundation for the position taken by appellant, that to give this section a retroactive operation would be divesting vested rights. Previous to the passage of this act the judgment in question had an unlimited lien as to time upon the property of the debtor. This right had been secured to the creditor by the law under which he had acted and had rested. Why was it not a vested right ? What more was required of him to make it such a right than he had done ? The law had said tc him, Obtain your judgment and you shall have a lien until the judgment is paid. It is true that may not have been a contract, the obligation of which was forbidden by the constitution of the United States as to impairing the obligation of contracts, but it seems to us that it approaches very closely a vested right, which is unassailable, equally with obligations of contracts.
The case of Moore v. Holland (16 S. C., 15) does not conflict with this view. There a decree had been obtained after the 1st of March, 1870, which denied to final judgments and decrees a lien on property, but the cause of action upon which the decree was founded existed before the act of 1st of March, 1870, when judgments if obtained in such cause had lien. And the owner of the decree contended that to deprive him of the right of lien in said decree under the act of 1st March, 1870, would be impairing the obligation of the contract. This court, however, said, No; the lien which you might have acquired if you had reduced your claim to judgment before the act of 1870 was no part of the contract, but was a remedy attaching to the judgment after it was obtained, and it being taken away before judgment, there was no impairing any obligation or legal tie that bound the debt- or to the performance of his contract. In substance, that this legal tie or obligation had not attached, nor was there any pro
The acts of 1873 and of 1885 have no bearing upon the questions involved, and therefore this opinion need not be prolonged by a discussion of said acts.
For these reasons I cannot concur in the opinion of the majority.
Judgment affirmed,