5 S.C. 146 | S.C. | 1873
Lead Opinion
The following is the opinion of
Assuming that the mortgage was recorded in conformity with the Act of 1843, the points involved in the grounds of appeal draw in question the validity of the Acts of 1866, (13 Stat. 384, 411,) so far as they are held by the Circuit decree to affect it.
Sauls presents himself in the position of a subsequent purchaser for valuable consideration without, notice, and it is an error on the part of the appellants to contend that the mortgage having been on record when Hull, in 1861, became the creditor of the mortgagor, S. J. King, the notice thus binding him must be held to extend to
The main ground on which a reversal of the Circuit decree is claimed by the appellants is, that their mortgage having been recorded in conformity to the requirements of the Acts in force at the time of its execution, they acquired certain vested rights in the mortgaged premises, which could not be divested by any subsequent exercise of mere legislative will; and if the operation of the Acts of 1866 is to defeat, destroy or postpone rights so vested, then they amount to a denial of right, impair the' obligation of a contract, and are unconstitutional, null and void.
The lien of a mortgage becomes operative through its own force. It is perfect and complete without the aid of confirmation by legislative authority. In McKnight vs. Gordon, (already referred to,) p. 231, it is said: “ Recording is not an element in the due execution of a mortgage, and, therefore, is not essential to its validity.” To prevent the mischief that would result to the public, if instruments, by the force of which property is transferred, particularly where no change of possession is required, the Legislature declared that although their effect may remain unchanged as to the parties, they should not prevail against subsequent creditors or purchasers for valuable consideration without notice, unless recorded in certain offices within a limited period. The mortgage acted by its own power from its execution, and we fail to see how the fact of recording it, in compliance with the provision then required by law, was so incorporated with it as to constitute a part of the contract, which the respective parties, as shown by the instrument, had entered into. The Legislature did not declare in the Act of 1843 that the notice which it therein fixed should forever remain unchanged, or by any implication bind itself, no matter what might be the necessity that intervened, not to provide by further interposition, for the prevention of the mischief which the Act of 1843 was designed to frustrate, should it prove ineffectual for the end in view.
In what respect, however, are the statutes of 1866 retrospective? While that of 1843 was effectual for the intended purpose, the conditions on which it should operate as notice remain unchanged. When it failed to meet the exigency for which it was adopted, all that the Legislature proposed by the Act of 1866 was to establish a mode by which, for the future, constructive notice of mortgages and other instruments, of which a registry had before been required, should bq provided. This it did by directing that they should be re-recorded. It did not affect the past. When the Act of 1843 failed to accomplish its intended purpose through the destruction of the record books which contained the evidence of the notice, all that the Legislature proposed was to carry out the purpose of its enactment.
The notice which it required was to protect the public. Where would have been the protection, after the destruction of the registry books, to a proposed purchaser from the mortgagor ? The original, if preserved, would remain in the hands of the mortgagee, without anything to put such purchaser to enquiry, and the whole community in the Counties where the books of the Register of Mesne Conveyance had been destroyed would have been in a state of inextricable confusion as to the title to their lands, without some legislation of the character of that of 1866.
What vested rights did the appellants acquire by recording their mortgage, according to the direction of the Act of 1843 ? It contained no stipulation that involved any prohibition against the State to require a compliance with any new regulations which it might impose to make the registration law more perfect, and certainly none which prevented it, when, by causes beyond its control, the provisions of the Act of 1843 ceased to effect the purpose contemplated by it, in the way of notice, from supplying the means by which notice of the mortgage of appellants should be given to the public.
But, as the authorities show, a vested right may be divested by the Legislature, unless it exists by virtue of, or in the nature of a contract. What elements of a contract enter into the registration
Mr. Cooley, in his treatise on Constitutional Limitations, referring to the power of legislation in regard to vested rights conferred by virtue of a contract, says at page 286 : “Such being the obligation of a contract, it is obvious that the rights of the parties in respect to it are liable to be affected in many ways by changes in the laws, which it could not have been the intention of the constitutional provision to preclude;” and quotes, as follows, the language of Mr. Justice Washington, in Ogden vs. Saunders, 12 Wheat, 259: “There are few laws which concern the general police of a State, or the government of its citizens in their intercouse with each other, or with strangers, which may not in some way or other affect the contracts which they have entered into or may thereafter form. For what are laws of evidence, or which concern remedies, frauds and perjuries, laws of registration, and those which affect landlord and tenant, sales at auction, acts of limitation, and those which limit the fees of professional men and the charges of tavern keepers, and a multitude of others which crowd the Codes of every State, but laws which affect the validity, construction, or duration, or discharge of contracts.” “But,” proceeds Mr. Cooley, “the changes in these laws are not regarded as necessarily affecting the obligation of contracts.”
Mr. Sedgwick, in his work on Statutory and Constitutional Law, p. 660, has not failed, in treating of the constitutional prohibition against interference with the obligation of a contract, to refer to its bearing on the recording laws of a State, and regards the question settled by the decision of the Supreme Court of the United States, in Jackson, ex dem. Hart vs. Lamphire, 3 Pet., 289. The point there made involved the effect of subsequent legislation in regard
The doctrine of Jackson vs. Lamphire was referred to and applied in Curtis vs. Whitney, 13 Wal., 71. Under its authority it was there held, “ that a statute which requires the holder of a tax certificate, made before its passage, to give notice to an occupant of the land, if there be one, before he takes his tax deed, does not impair the obligation of the contract evidenced by the certificate.” A review of the legislation of South Carolina, beginning long before the ratification of the Constitution of the United States, will show a succession of Acts in regard to the recording of conveyances, both of personal and real estate, enforcing changes and conditions, operating on those executed prior to the requirement of the new' provisions. We will, however, confine ourselves to those enacted since the adoption of that instrument. On 13th March, 1789, 5 Stat., 127, the Legislature passed an Act whereby, after reciting a previous Act, which required the recording of conveyances of land in a prescribed time, and that, if not so recorded, should be void against creditors or subsequent purchasers, who had recorded their title according to its provision, that few or no mortgagees or purchasers had discovered the Act — and had failed to record according
On the 5th of September 1792, 5 Stat., 203, an Act was passed, reciting the Act of 1785, which required marriage deeds and contracts to be recorded, and that it had been judicially held not to extend to those actually existing at its passage. Therefore, it enacted that those so existing and not recorded within eighteen months of the passage of the Act should be null and void as against creditors and bona fide purchasers and mortgagees.
On 20th of December, 1823, 6 Stat., 42, the Legislature declared by Act that no marriage settlement “ shall be valid until recorded in the office of Secretary of State and Register of Mesne Conveyance of the District wherein the-parties reside: Provided, The parties shall have three months to record the same, and if not recorded in three months, the same shall be null and void.”
In December, 1832, 6 Stat., 482, the Legislature declared “ that marriage settlements of the wife’s property, executed since said 20th of December, 1823, and not recorded, shall be regarded as valid between the parties.” This very Act of 1843, which makes mortgages void as to subsequent creditors or purchasers for valuable consideration, if not recorded within sixty days after 1st of May, 1844, declares those void which shall not be recorded within sixty days of the 1st day of May, 1844, if executed previous to that day.
If these various Acts, which, in view of the argument for the appellant, affected vested rights supposed to be protected by the prohibition of the Constitution of the United States, it is strange that in the extended period of their existence no question has been ever made, in their practical operation, by or on behalf of creditors, purchasers, or even debtors, of the right of the Court to enforce them.
In the construction of the Act of 1843, and of all registration statutes, being remedial in their character, we must look to the mischief of the existing law, and the means which were supplied to prevent it. The evil was the want of notice of the lien of the mortgage, and the remedy was afforded by requiring it to be recorded in some public office, to which all might have access. While the books which contained the record could be reached, a source of notice was provided for the community. Where, as in the County of Colleton, they were destroyed, it was deprived of the notice they were intended to supply. The Statute ceased to secure the very object of its
The motion is dismissed. It is necessary, however, as the time fixed for the sale of the other moiety of the mortgaged premises, which, it is admitted, is bound by the mortgage, being the share of
The following is the opinion of
Concurrence Opinion
We fully concur in the opinion that the fact of having complied with the provisions of the registration Act, in force at the time of the making of the mortgage in 'suit, does not constitute a contract as between the mortgagee and the State, and the subsequent enactment of a law requiring a second Act of registration cannot be regarded as tending to impair the obligation of any such contract.
The real question is, whether the enactment of a law requiring the re-registration of mortgages already in operation, and registered in conformity with the laws in force at its inception, and validating the title of subsequent purchasers and judgment creditors in case of a neglect so to record, tends to impair the obligation of a contract. We do not question the power of the Legislature to pass laws requiring instruments already in existence to be recorded, or to provide suitable penalties in case of a failure to comply with such requirements. The question here arises out of the nature of the penalty imposed. It is, whether it does not disturb the relations between the mortgagor and mortgagee as settled by the mortgage. On this point we yield with reluctance to the authority of the Supreme Court of the United States, as expressed in Jackson vs. Lamphire, (3 Pet., 289). That Court may feel at liberty to treat the question as still open, in view of the fact that the registration laws were not before the Court in that case, nor in Curtis vs. Whitney, (13 Wall., 68); but this Court is bound to give weight to the fact that the legislation of this State on this subject has been shaped upon the views expressed in regard to registration laws in Jaehson vs. Lamphire, and also to the consideration that doubtful constructions of clauses of the Constitution of the United States, limiting the powers of the States, should generally be solved by the State Courts in favor of those powers, and always so solved where the general doctrines advanced by the Supreme Court of the United States appear to sanction such a course. We do not, therefore, feel at liberty to follow the convictions of our own minds on this subject.
For the reasons above stated, we are compelled to concur in upholding the statute in question.