45 Iowa 65 | Iowa | 1876
Lead Opinion
does not exist. This point was determined adversely to appellee in Johnson v. McGrew, 42 Iowa, 555.
Appellee contends that, under this section, the intervenor has no lien as against the mortgagee of the premises, no lien having been reserved in any written instrument. The intervenor insists that this section cannot, constitutionally, apply to his contract of sale, which was made before the section was enacted.
The Constitution of the United States, Art. 1, section 10, provides that no-State shall pass any law impairing the obligation of contracts. The Constitution of this State, Art. 1, section 27, imposes a similar restriction upon legislative authority.
To this appellee responds that there was no contract that the intervenor was to have a lien, and that, for this reason these constitutional provisions are not applicable. Citing Porter v. City of Dubuque, 20 Iowa, 440. It must be remembered, however, that it is not a contract simply but the obligation of. a contract which the constitution preserves from impairment. The obligation of a contract includes much that is not expressly stipulated for in the contract.
“ The obligation of a contract consists in its binding force on the party who makes it. This depends upon the laws in existence when it is made; these are necessarily referred to in all contracts, and form a part of them as the measure of the obligation to perform them by the one party and the right acquired by the other.- There can be no other standard by which to ascertain the extent of either, than that which the terms of the contract indicate, according to their settled legal meaning; when it becomes consummated the law defines the duty and the right, compels one party to perform the thing contracted for, and gives the other a right to enforce the per
“ The obligation of a contract * * * is the law which binds the parties to perform their agreement. The law, then, which has this binding obligation, must govern and control the’contract, in every shape in which it is intended-to bear •upon it, whether it affects its validity, construction or discharge. It is, then, the municipal law of the State, whether that be written or unwritten, which is emphatically the law of the' contract made within the State, and must govern it throughout whenever its performance is sought to be enforced.” In the same case, Thompson, J., said: '“As I understand it, the law of the contract forms its obligation.” In the same case Trimble, J., said: “The obligation of the contract consists in the power and efficacy of the law which applies to, and enforces performance of, the contract, or the payment of an equivalent for non-performance. The obligation does not inhere and subsist in the contract itself, proprio vigore, but in the law applicable to the contract. This is the sense, I think, in which the constitution uses the term obligation.” Cooley on Constitutional Limitations, p. 285, note:
. The action of this court has been in entire harmony with these principles. In Rosier v. Hale, 10 Iowa, 470, it was held that “ An Act to provide for the appraisement of property sold under execution, approved March 31, 1860,” cannot constitutionally apply to contracts entered into prior to the date of its taking effect. In Maloney v. Fortune, 14 Iowa, 417, it was held that section 3664 of the Revision, allowing a year’s redemption after foreclosure sales, is inconsistent with the Constitution of the United States, and with that of the State
Applying these principles to the case in hand, the solution of it is easy.
On the 8th day of April, 1870, the intervenor sold and conr veyed the premises in question to Wimer, eleven hundred and fifty dollars of the purchase money remaining unpaid. In virtue of his contract of sale and conveyance, he acquired a right to a lien upon the premises, against Wimer and his grantees with notice, for the unpaid jourchase money. This right, secured hy the law then in force, forms a part, and a very essential part, of the obligation of the contract. Any legislation which destroys this right, impairs the obligation of the contract. It seems to us quite clear that section 1940 of the Code cannot constitutionally apply to contracts made before its passage.
But we think that, having knowledge that purchase money was unpaid, it was his duty to inquire and ascertain how much was unpaid.
Y. Appellant insists that his judgment is for too small an amount. But, as he has not made his debtor, Wimer, a party to the appeal, he can have no relief in this respect.
The court erred in postponing the lien of the vendor to that of the mortgagee.
Reversed.
Dissenting Opinion
dissenting. — I feel compelled to withhold my assent to so much of the foregoing opinion as holds that the lien of the intervenor has priority over the mortgage. My reasons briefly are:
I. It is conceded in the opinion that § 1940 of the Code applies to transactions that took place prior to its passage;
It is said in Porter v. Dubuque, 20 Iowa, 440, that the lien of the vendor is “ not based on contract,” “ nor is it an equitable mortgage or resulting trust. It is a simple equity raised and administered by courts of chancery.”
The principle upon which courts of equity have gone in establishing this lien is that one person has gotten the estate of another which he ought not to keep -without paying the full consideration. The lien cannot be “attributed to the tacit consent or implied agreement of the parties, but stands independently of any such agreement.” 2 Story’s Equity Jurisprudence, § § 1219, 1220.
The lien is a mere equity or capacity of acquiring a lien, and to have it satisfied. But it is not an equitable estate in the land itself. Nor can its existence be safely predicated in any case until established by a decree of the court. Gilman v. Brown, 1 Mason, 162. The lien of a judgment or attaching creditor has priority over that of the vendor. Allen v. Boring, 34 Iowa, 499.
What was the contract between-the intervenor and vendee? Simply that in consideration of the sale and conveyance of the land the vendee agreed to pay the purchase price. The intervenor thereupon became entitled to a lien, in case the piirchase money was not paid, against the vendee and subsequent purchasers, or incumbrancers with notice. But this was not an obligation of the contract. At most it was an incident attaching thereto, which might or might not be enforced, not because based on contract, but because the vendee has possession of property which he has not paid for.-
If the lien constitutes an obligation of the contract, it attaches at the instant the contract is made. This, however, cannot be, for the contract precedes the conveyance. It cannot and does not attach at the conveyance, but at the timo a court of equity gives it vitality and by its decree causes it to relate back to the purchase, provided there are no intervening equities. It is difficult, therefore, to see how it forms an obliga
II. Previous to the enactment of the Code the reservation of the lien by any writing was not required; but the facts essential to its enforcement might be shown partly, at least, by parol.
Section 1940, however, declares that the lien shall not be recognized or enforced unless it is reserved by some writing, acknowledged and recorded. This, in my opinion, is a mere rule of evidence, degree or kind of proof requisite to establish the existence of the lien, and therefore relates to the remedy only. Cooley on Constitutional Limitations, 288.
Suppose the General Assembly should repeal the statute of frauds, and enact in its place that no writing should, in any case then pending or thereafter brought, be required to establish any of the matters now required to be proved by writing. Will it be said such a law would be unconstitutional? Or suppose, by the law mow in existence, a parol promise is sufficient to revive a debt barred by a discharge in bankruptcy or the statute of limitations, and the General Assembly should pass a law making all such promises void unless in writing. That such a law would be constitutional, and parol promises made before its passage held void, was expressly decided in Kingley v. Cousins, 47 Me., 91.
The legislature may prescribe what shall and what shall not be evidence of any asserted fact, whether it shall be in writing or oral,; and it can make no difference whether it be in reference to contracts existing at the time or prospectively. There is not and cannot be a vested right in a particular remedy, or that what is to-day legal evidence of a fact will always remain so. Oriental Bank v. Frye, 10 Me., 109; Fades v. Wadsworth, 23 Me., 553; Springfield v. County Commissioners, 6 Pick., 501.
III. It is a difficult question to determine what relates to the obligation of a contract and what to the remedy. No general rule can be laid down. Nor can this question be satisfactorily solved by a consideration of the language used by
The point decided in Ogden v. Saunders, 12 Wheaton, 213; Bronson v. Kinzie, 1 How., 311; and McCracken v. Hayward, 2 How., 608, should, I apprehend, be conclusive in any subsequent case based on similar facts. It can be well said, however, that in none of those cases are the facts like the case at bar. There is a class of cases which, to my mind, more nearly resemble this — those which recognize that imprisonment for debt does not form an obligation of the contract. It is held that a discharge of the person of the party from imprisonment does not impair the obligation of the contract, but leaves it in full force against his property and effects. Beers v. Houghton, 9 Peters, 329. So here, the discharge of the lien does not impair .the obligation, of the contract, but leaves it in full force against the property and effects of the vendee. This might be different if the lien constituted an obligation of the contract.
In Morse v. Goold, 1 Kernan, 281, it was held that a law exempting certain property from levy and sale applies to judgments rendered on contracts entered into before as well as after its passage. See also Walter v. Bacon, 8 Mass., 468; Bigelow v. Pritchard, 21 Pick., 169.
. It was expressly stipulated in a lease that the lessor might distrain for rent. Afterward a law was passed abolishing distress for rent. It was held such law was constitutional, and did not impair the obligation of contracts. Conkey v. Hart, 4 Kernan, 22; Varn Renssalaer v. Snyder, 3 Id., 299.
Rosier v. Hale, 10 Iowa, 470, is not, in my judgment, applicable. And I think Holland v. Dickerson, 41 Iowa, 367, is in conflict therewith. The latter holds that the obligation of a contract is not impaired where the remedy is by the legislature so changed as to make it more efficient than previously; that to impair makes worse; to so change the remedy or obligation of the contract as to make it more efficient is to impair or change it against the interest and desire of the other party. There must be at least two parties to every contract — their obligations are different. To make it better for
The vendee has not appealed from the judgment establish ing a lien, but postponing it to the mortgage. I therefore am of opinion the judgment below should be affirmed.
