41 Iowa 367 | Iowa | 1875
The law in force at the time the mortgage in question was executed, and when the' decree of foreclosure was rendered in the court below and in this court, provides that no goods, chattels, lands or tenements shall be sold on execution for less than two-thirds the fair value thereof, to be fixed by appraisers, unless the property has been conveyed by the debtor to defraud creditors, or he elects, before levy, to have his property sold subject to redemption, and without appraisement, in which case he may redeem within one year from the
The law in force at the time the property was offered for sale requires and authorizes the appraisement of personal property, only, and it provides that the defendant shall be entitled to redeem in no action in which he has taken an appeal or stayed execution on the judgment. Code of 1873, Sections 3100 and 3102. From the agreed statement of facts it appears that defendants have both appealed and stayed execution.
Obligation is correlative with right. Obligation rests upon one party, right belongs to the other.
Perhaps as good a definition of obligation as can be given is that contained in the recent case of Lasley v. Phipps, in the Supreme Court of Mississippi, reported in 13 American Law Register, 236, as follows: “The obligation of a contract is the duty of performance according to its terms, the means of enforcement being a part of the obligation, which the states cannot by legislation impair.”
It has also been said that the obligation of a contract is its binding power, that which compels its performance, or, as defined by the Supreme Court of the United States, 2 Wheaton, 197, the law of the contract. See Blair v. Williams and Lapsley v. Brashear, 4 Littell, 66.
This obligation, this duty of performance, this binding
But all change is not impairment.
Impair means to make worse, to diminish in quantity, value, excellence or strength, to lessen in power, to weaken, to enfeeble, to deteriorate. See Webster’s Dictionary.
The constitution then simply inhibits the passage of any law which shall weaken the power which compels the performance of a contract. Does the statute in question have this effect? Does it not rather strengthen and accelerate the power which compels the performance of this contract?
In Webb v. Moore, 25 Ind., 4(9), it is said; “We think it well settled that the remedy given by law to enforce a contract, upon a breach of its obligation, may be changed, from time to time, at the will of the legislature. The point guarded by the constitution is that, in so changing the remedy, care must be taken that the obligation of the contract be not, thereby, materially lessened, weakened, or impaired. It is equally well settled that the legislature may give a more efficient remedy for the enforcement of the obligation of a contract, after breach, and that such legislation is not repugnant to the Constitution of the United States, prohibiting a state from passing any law impairing the obligation of contracts.”
In this case the law in force at the time of the execution .of a mortgage to the school fund required the county auditor to give sixty days’ notice of sales for the non-payment of the principal or interest of the loans. It was held that subsequent legislation, reducing the time of notice to three weeks, did not impair the obligation of the contract.
In Grubb v. Harris, 1 Bibb., 567, it was held to be competent for the legislature to provide a more summary remedy for the recovery of debts, than existed at the time of making the contract.
In Reardon v. Searcy's heirs, it was held to be competent for the legislature, after the date of a contract, to subject to its satisfaction land which was not subject at the date of the contract.
Referring to these cases the Supreme Court of Kentucky,
For a very full discussion of this subject and a presentation of the reasons which gave rise to this provision in the constitution of the United States, see the opinion of Mills, J., in, Blair v. Williams, and Lapsley v. Brashear, 4 Littell, 65.
The only case which we have seen, which appears to be in conflict with these views, is Cargill v. Power, 1 Mich., 370.
The judgment in question was rendered in 1869. This judgment flxed the relative rights and duties of the parties thereto. It conferred upon the judgment creditor the right to subject, in a particular manner, real estate to the satisfaction of his judgment. It was competent for the judgment debtor to have his property sold under appraisement, at two-thirds the
The right which the judgment confers, the statute says shall not be affected through the repeal of existing statutes by the enactment of the Cocle. To affect does not mean to impair, but to work a change upon. A right is affected, if it is either enlarged or abridged. It follows that the rights acquired under the judgment are not to be changed by the Code of 1873, and that property must be subjected to the satisfaction of the judgment in the manner required when the judgment was rendered.
The sheriff is directed to re-advertise the property and again offer it for sale, under appraisement.
It is further directed that the appraisers estimate the amount of the incumbrances existing upon the property.