Iverson v. Shorter

9 Ala. 713 | Ala. | 1846

GOLDTHWAITE, J.

Without reciting in detail, the act passed in Janury, 1842, to prevent the sacrifice of real estate, it is sufficient to remark, that it provides for the redemption of the interest of the debtor, in any real estate which should thereafter be sold. The period within which the redemption may be made, is fixed at two years, and the right of redemption is given to the debtor, and to any bona -fide creditor — to the former upon offering 10 per cent, per annum to the purchaser, and to the latter, in addition to this, the offer to credit the debtor with a further sum of ten per cent, upon the amount of the purchaser’s bid. A clause in the act extends its operation to all sales under mortgages, deeds of trust, and decrees in equity. [Clay’s Dig. 602.]

We are unable to see how this act is violative of the constitution, at least so far as it governs sales under execution-Conceding that a judgment creditor, at the time of this enactment, had by his active diligence acquired a lien on the real estate of his debtor, this may be said to be entirely without his contract, and is in no 'manner affected by it., The legislature, as it seems to us, may modify, or even abolish, all such laws, without in any manner impairing the obligation of the contract. The answer to the entire argument is, that the creditor has stipulated for no specific lien, and the only right under his contract is, to have the same remedies as all other creditors are entitled to by the general laws of the land. It might be contended with equal force, that imprisonment for debt was contracted for, when the engagements were entered into some years ago, as that the right to sell the land of the debtor was now a part of the contract. The case of Bronson v. Kenzie, 1 Howard, 311, goes to show, that a creditor who has contracted for a specific lien upon his debtor’s lands, cannot be deprived of that right by any subsequent legislation; but certainly stops far short of the decree in this suit. In New York, where [statutes very similar'to that which we are now considering, have prevailed for more than twenty-five years, their constitutional validity, so far as we can ascertain, has never been questioned, and we presume similar ones are in existence in other States. We dismiss, then, the constitutional question, with the brief remark, that if the statute was open to objection on this score by a creditor, it would scarcely avail a purchaser, wh'o takes all his right by virtue of the specific legislation.

It is however contended, the statute should be restricted to such judgments as Are obtained after its enactment. There is no room to give this restriction, without departing from the very letter, which directs that all sales “hereafter made,” shall be governed by it. In New York, these statutes are considered remedial, and as such entitled to be construed in the most liberal manner, to advance the remedy. [Van Renselear v. Sheriff of Albany, 1 Cowan, 501.] With us, statutes giving a new remedy have frequently been construed to apply to suits then existing. [Bartlett v. Lang, 2 Ala. Rep. 404.] And such is believed to be the general construction with respect to such statutes, unless the .intention is apparent to restrict their operation. The opposite rule applies when statutes seem to affect existing rights. [Boyce v. Holmes, 2 Ib. 54.]

Upon the whole, our conclusion is, that the act in question is constitutional, and applies to all sales made after its passage. Whether the defendants being the assignees of one of the judgments, by virtue of which the lands in question were sold, are entitled to be consinered as bona fide creditors, is a matter not decided by the Chancellor, and therefore need not be now determined by us. Such seems to have been the opinion in Van Rensalear v. Sheriff of Onondaga, 1 Cowan, 443, but we decline to decide this point until directly presented. As an account is necessary, as well as other proceedings, the cause will be remanded.

Decree reversed and remanded.