17 S.E. 539 | N.C. | 1893
BURWELL, J., dissents arguendo, in which CLARK, J., concurs.
The extreme limit of liberality in sanctioning the admission of parol proof to explain ambiguous descriptions in deeds and contracts for the sale and conveyance of land was attained in Carson v. Ray,
The contract under consideration is in the following words: "Wilkesboro, N.C. 19 April, 1880 — James Harris has paid me twenty dollars on his land; owes me six more on it."
As the location of the land is not fixed directly or inferentially within the State of North Carolina, or within the United States, the receipt is still more vague than either of the instruments (479) discussed by Battle, J., and it may be assumed that no one will venture to maintain that it was not void for uncertainty before the passage of the act 1891. Indeed, the case of Fortescue v. Crawford,
The policy of the law in existence before that statute was enacted was to remove as far as possible the temptation to perjury by permitting parol proof to be used in aid of a defective description only where it pointed by its terms to some extrinsic evidence for explanation of its ambiguous meaning. Allen v. Chambers,
The Legislature unquestionably had and has the power to modify or repeal the whole of the statute of frauds, in so far as it applies to future contracts for the sale of land; but its authority to give the repealing statute a retroactive operation is as certainly restricted by the fundamental rule that no law will be allowed to so operate as to disturb or destroy rights already vested. Did the Legislature intend that Laws 1891, ch. 465, should be construed to operate retrospectively, and (480) if so, is the law in so far as it relates to preexisting rights unconstitutional?
No law which divests property out of one person and vests it in another for his own private purposes, without the consent of the owner, has ever been held a constitutional exercise of legislative power in any State of the Union. Cooley Const. Lim., star p. 165; Wilkinson v. Ward, 2 Peters, 658; Satterlee v. Matthewson, ib., 380; Hoke v. Henderson,
Even in England, where there are no written constitutions, a statute will not commonly be construed to divest vested rights, and when giving it a retrospective effect may lead to that result it is allowed to operate prospectively only. Moore v. Phillips, 7 M. W., 536; Cranch v. Jeffries, 4 Bur., 2462. The radical difference between the rules of *361
construction prevailing in the two countries grows out of the fact that the courts in England are forced to concede the supreme and unlimited power of Parliament, while in the United States, legislatures are bound to observe and the courts to enforce the restrictions imposed upon all the coordinate branches of the government by the Federal and State constitutions. Philosophical writers upon law generally in all countries, however, deny the power of the Legislature to pass statutes that impair a right acquired under the law in force at the time of its enactment, and insist that the right to repeal existing laws does not carry with it the power to take away property, the title to which vested under and is protected by them. But the Legislature of North Carolina is (481) restrained by Article I, section 10, of the Constitution of the United States, and Article I, section 17 of the Constitution of North Carolina, not only from passing any law that will divest title to land out of one person and vest it in another (except where it is taken for public purposes after giving just compensation to the owner), but from enforcing any statute which would enable one person to evade or avoid the binding force of his contracts with another, whether executed or executory.Robinson v. Barfield,
The first case in which the constitutional inhibition against the passage of a law impairing the obligation of a contract came before the Supreme Court of the United States for construction was Fletcher v.Peck, supra. The Legislature of the State of Georgia had, by an act passed in 1795, granted land to Grinn and others, and the defendant Peck was a purchaser for a valuable consideration, holding through severalmesne conveyances under the patentees named in the act. In 1796 the same body enacted a statute repealing the act of 1795 and declaring it and all grants issued under its provisions null and void, on the ground that its passage was procured by undue influence and corruption. The Court held that the act of 1796 could not be construed to divest the title out of the defendant Peck and invest it in the State, and rested its rulings not only upon the clause of the Constitution mentioned, but also upon more general principles arising out of the organic law of all of the States. The Court said upon this subject: "To the Legislature all legislative power is granted, but the question whether the act of 1796, transferring the property of an individual to the public, be in the nature of a legislative power, is well worthy of serious (482) reflection." This was the earliest intimation that if the prohibition had been omitted in the Federal Constitution the Legislature of the State would have had no power to revoke its own grant, without the consent of innocent persons holding under it. It has since been held *362
in the appellate courts of the States generally that a law which provides for the transfer of the interest of an individual in land to another person or to the State, except for public purposes and upon just compensation, is void because it is in conflict with the provisions of the organic law, that the three coordinate branches of the government should be kept forever separate and distinct, and that no person should be deprived of his property but by the law of the land. Stanmire v. Taylor, Hoke v. Henderson,King v. Comrs., and Wesson v. Johnson, supra. It is true that the Legislature may alter the remedy if its efficacy is not impaired, or take it away if one that is not calculated to diminish the value of the debt be provided in place of it. Long v. Walker,
Kent (1 Com., 455) says: "A retrospective statute affecting and changing vested rights is very generally considered in this country as founded on unconstitutional principles and consequently inoperative and void."
After the legacy had been bequeathed to a married woman and when under the law then in force the husband had a right to it, subject to certain contingencies, the Legislature of New York passed an act declaring that the real and personal property of any female then (483) married should be her sole and separate property. The appellate court said: "The application of this statute to this case would be a violation of the Constitution of this State, which declares that no person shall be deprived of life, liberty or property without due process of law." Wistervell v. Gregg,
In Greenough v. Greenough, 11 Pa. St., 494, Gibson, C. J., discussed a statute which changed the rules of evidence by providing that every last will and testament, made and not finally adjudicated prior to the passage of the act, to which the testator had made his mark or directed his name to be written, should be deemed valid and admitted to probate on proof of the fact. The learned judge said that the law was *363 "destitute of retroactive force, not only because it was an act of judicial power, but because it contravened the constitutional provision that no man should `be deprived of life, liberty or property except by the law of the land.'" Our statute is one providing for a different mode of establishing a deed or contract which may infuse life into a contract void at the option of the party to be charged, just as that act proposed to make operative a void will.
In this State it has been settled that the Legislature is not empowered to pass an act that provides for depriving a person of his property in an unexpired term of office even by a general law or amendment to the Constitution prescribing a different mode of election, or (484) by creating a new office and turning over the emoluments and perquisites belonging to the officer during the residue of his term to the incumbent of the newly created place, because an officer has a vested right in his office for the term prescribed by law. Hoke v. Henderson, and Kingv. Comrs., supra.
In University v. Foy,
In Sutton v. Askew,
In Leak v. Gay,
In Stanmire v. Taylor,
It is contended, however, that the Legislature has the power to pass remedial acts, and especially is authorized to so alter the rules of evidence as to afford relief to litigants. But the limit to such authority is transcended, said Seawell, J., when a law is enacted which in its enforcement has the effect of depriving "one individual of his property without his consent and without compensation, and transferring it to another." Robinson v. Barfield, supra. The principle governing this controversy was as clearly stated by Daniel, J., in an opinion delivered in the same case, when he said that "The transfer of property from one individual, who is the owner, to another individual is a judicial (486) and not a legislative act. When the Legislature presumes to touch private property for any other than public purposes, and then only in case of necessity and upon rendering full compensation, it will behoove the judiciary to check its eccentric course by refusing to give any effect to such acts."
We think that where a deed or contract purporting to convey passes an equitable interest in land it is not upon its face void, and the Legislature has the power to enact remedial laws regulating the probate and registration of such instruments, though the incidental effect may be to admit to registration a deed or contract, which could not previously be proven, and to enable the person claiming under it to use it in establishing his title. It has been suggested, however, that the Legislature has the power to give efficacy retrospectively to contracts like that under consideration, which have been so often declared void for uncertainty, because it has also been held that they were void at the election of the person to be bound thereby (just as in the case where the agreement is merely verbal), and that being voidable the Legislature had the power to impart vitality to them. But we do not think that the line of demarcation, which indicates the limit of legislative authority, *365 can be made to depend upon the question whether the agreement is void or voidable. The deed of a married woman is void; that of an infant void at his option on arriving at maturity, and the leading authorities concur in sustaining the general proposition that the contracts of infants are voidable only; yet it will not be contended that a statute allowing all conveyances theretofore made by infants to be registered and declaring them effectual to pass the land described in them would be held constitutional so as to divest title out of such infants without their consent. How can such a statute be distinguished from one which operates to divest title out of a party against his (487) will because he has signed a paper or entered into a verbal agreement which the laws declares, just as in the case of an infant, has passed no interest, legal or equitable, in the land which purports to be the subject of the agreement?
An unregistered deed, executed with all of the formalities prescribed by law, conveys an equity which would descend to the heirs of the grantee. A law which gives efficacy to the probate of such a deed merely provides for transferring the legal estate by certain proof to the person who had previously been the real owner in equity. It transfers the legal estate to such equitable owner as did the statute of uses, but it does not disturb the vested beneficial right. If in that case the deed were ineffectual upon its face to pass any interest, legal or equitable, no remedial statute could impart efficacy to it. Robinson v. Barfield, supra. It would seem, therefore, more accurate to declare that the power to enact remedial statutes giving effect to contracts for the sale and conveyances of land extends only to those cases where the grantee or other person deriving benefit from their enforcement had, previous to the passage of the law, an equitable right, and not to cases where the policy of the law or the express provision of a statute had prevented the transmission of any interest whatever by the instrument or agreement relied on.
Contracts are made with a view to the legislative authority to provide for proving in the readiest manner that the parties actually entered into them, but the parties are not deemed to have acted in reasonable contemplation of such an alteration in the law as to change its policy and thereby transfer both the legal and equitable estate in land without the consent of the owner. As the case involves an important principle, it may not be improper to cite numerous additional authorities from the appellate courts of many of the States in which an effort has been made to fix and determine the limit to the authority to pass (488) remedial laws.
In Alter's Appeal, 67 Pa. St., 341, the Supreme Court of Pennsylvania declared it incompetent for the Legislature to empower the courts *366
to correct a mistake in a testator's will which rendered it inoperative, and thereby deprive his heirs at law of property that had descended to them. In another case it was held by the Court of Nevada that where a testator left no heirs the Legislature had power to waive the right of the State to take his property as an escheat by validating a will in favor of his devisees, but could not have divested the title of his heirs at law if any had been known. Estate of Stickworth, 7 Nevada, 229. In Hasbranch v. Milwaukee,
To declare by statute in terms that Mrs. Calloway intended to convey when she actually aliened nothing, would be a legislative usurpation of judicial power, and to change the general remedy applicable to preexisting contracts so as to pass an estate now, when no equitable right vested in Harris at the time of the execution of the paper, even if it be accomplished by modifying the rules of evidence, would be to disturb a vested right by transferring the land without compensation to the *367
owner from whom it is taken after it had been aliened to a purchaser for value. Norman v. Hoist, 5 W. S. (Pa.), 17. There is a general presumption against the retroactive operation of statutes, and they will, in cases like that at bar, where it will impair vested rights to apply them to past transactions, be construed to affect rights accruing after their enactment. Endlich, secs. 271 to 274; Richardson v. Cook,
Where deeds are executed by virtue of a judicial decree, and are voidable only, not void, by reason of some irregularity growing out of a failure to follow the mode of procedure prescribed by law in the conduct of the action or proceeding, it is clearly competent to cure such defects by remedial legislation, and where the action or proceeding (490) has been instituted and prosecuted in good faith, it is not only eminently just, but it serves the important end of preserving the public confidence in the stability of judgments of the Courts to resort to the law-making power for such relief. Hence the curative acts, affecting irregularities in special proceedings, have been upheld by the Courts, as they cannot be collaterally impeached, and are voidable only in the absence of such remedial acts at the instance of a party to them, not void. Edmundson v. Moore,
The statutes that provide for supplying lost records are also within the scope of legislative authority, because they only give to certain persons the means of setting up and establishing valid titles, and the parties who actually aliened and passed title to them cannot complain, because all right has already been divested out of them, and they are presumed to have conveyed with reference to the legislative power to provide for restoring the evidence of what had been actually accomplished, not simply attempted in the face of a statute declaring the attempt in advance ineffectual. Adlev. Sherwood, 3 Wharton (Pa.), 484.
As we have already stated, after a deed has been executed, if it be valid upon its face, the grantee takes an equitable estate under it, till by force of registration (which is our modern substitute for livery of seizin) the legal estate vests in him. He being the owner in equity, it is no interference with vested right to provide by law a more convenient mode of proving the execution or to ratify a probate that is informal, or was taken by an officer not empowered to do so, but who mistook his power. Freeman v. Person,
Where a party prays an appeal to an appellate court, the (493) judgment of the court below is thereby vacated, subject to the condition that he shall perfect his appeal either under any law existing when he appeals, or that may be enacted before his cause is heard in the appellate court, and a curative act which gives him a status in the higher court is considered to have been in contemplation of the parties at all times and divests no title but simply provides the means of fairly ascertaining the rights of the litigants. Walker v. Scott,
If the receipt was void for uncertainty as a contract, and the defendant acquired no legal or equitable right that could then be enforced, the General Assembly had no more authority, even under the guise of changing the rule of evidence or providing a new remedy to transfer the life estate of Mrs. A.P. Calloway and the remainder in fee of her daughters to the defendant, by a general than by a special act, naming the parties and setting forth their relation to each other. Such (494) special acts have been declared by this Court to be in contravention of the organic law, not only as attempts to divest vested individual rights, but as infringements on the part of the Legislature upon the power of the judicial branch of the government. Stanmire v. Taylor, supra.
We conclude, therefore, that the Legislature did not intend that the statute should apply to preexisting contracts, but only to those entered into after its passage. *370
In permitting the defendant to explain what land was referred to we think there was error.
NEW TRIAL.