Moore v. Letchford

35 Tex. 185 | Tex. | 1872

Walker, J.

In an action of trespass to try title, the appellant, Asa Moore, failed in the district court; the verdict and judgment were for the defendant, William H. LetcMord. The lands in controversy were the property of Blackstone Hardeman and L. T. Barrett. The appellant claims under a sheriff’s deed; the appellee by virtue of a deed from the United States marshal, and a conveyance from James B. Johnson, whose title is also by the sheriff. The appellee holds the older and better title to the lands in controversy, although acquired through a junior judgment, unless, upon an examination of the law of the case, it shall be found that the appellant’s judgment held the lands, bound by a prior lien. The contest is, then, between judgment creditors for priority of lien. Moore’s judgment against Hardeman and Barrett was rendered on the sixth of July, 1861, with stay of execution till the first of February, 1863. Letchford’s judgment dates from the ninth day of November, 1867. Johnson’s, judgment dates from the twentieth of August, 1867. The sale at which Letchford bought was made in April, 1868. Moore purchased at a sale made June, 1868. No further notice need be taken of Johnson’s title, as it stands or falls with Letchford’s, and is a part of it.

There is no question as to priority of judgment. The act of February 14, 1860, which had repealed the nets of 1839 and 1840, was in force when Moore obtained his judgment. So far as the provisions of that act influence the case, they are as follows :

1. Judgments under this act did not become dormant ■unless ten years should elapse between the issuance of «executions.

2. No judgment rendered after the passage of the ■.act operated as a lien on the lands of the judgment debtor, situated in the county where the judgment was Tendered, until a transcript was filed for record in the ■office of the county clerk. The lien continued for four years, and could be kept alive by reinscribing within each succeeding quadrennial period. The issuance of ■execution was not a condition precedent to the lien. In ■examining the appellant’s title, we do not look to this statute to determine whether he had a lien under it or not, but for the purpose of seeing whether his judgment remained alive under it until the ninth of November, 1866, for it is not claimed that he ever caused his judgment to be registered.

In accordance with the opinion which we have uniformly held, a judgment creditor lost none of his rights "by the non-issuance of execution when hindered by any of the laws known as the stay laws. Moore, then, had a valid, living judgment, on the ninth of November, 1866.

The act passed on that day provides, that whenever final judgment shall be rendered by any court of record of this State, such judgment shall become a lien on all the real estate of the judgment debtor situate in the «county where the judgment is rendered. A proper understanding of this clause of the statute leads directly to the disposition of this case.

It will be observed that on the tenth day of November, 1866, the Legislature passed another stay law.

The lien secured under the act of ninth of November, 1866, was lost, unless execution issued upon the judgment within one year from the first day upon which such execution could by law be issued thereon. It matters not, in the judgment of this court, whether the law of the tenth of November, 1866, be declared unconstitutional, or not. We are clearly of opinion that if Moore gained a lien upon the land by operation of the act of the ninth of November, and was hindered from issuing his execution within the year, by the act of the tenth of November, 1866, he did not lose Ms lien, for he is guilty of no laches. The determination of this case, then, rests upon the interpretation to be given to that clause of the act of November 9, 1866, which gives a lien to judgments which shall be rendered.

A very learned discussion is found in the briefs, of the true rendering of this passage. Grammarians not unfrequently, in the construction of sentences, use the " terms “shall be” and “shall have been” indifferently. Grammatical nicety only accords this privilege where time is really not referred to, but where the term is used # rather as a constituent part of a proposition; thus we say indifferently, when a judgment shall be rendered, or when a judgment shall have been rendered, a lien shall attach, etc.

We are led to conclude that the Legislature used the words “shall be” in this manner; they would otherwise have been separated by the word hereafter, or the words in the future. And there was, in justice, no reason for making an invidious distinction against judgments, and to the prejudice of judgment creditors, tied. up and Mndered during the long period of the civil war. Had it been the policy or intention of the Legislature to make a distinction between judgments rendered before, and those after the act, justice and a sound regard to the rights of parties would have given the preference to the older judgments.

That principle of the law which holds parties guilty of laches to have thereby lost their rights, is founded in sound policy. But he is not guilty of laches whose remedies are either suspended or taken away from him by the supreme power of the State, under the seeming dictation of necessity. By civil war the normal conditions of society are necessarily more or less disturbed. The law, to which every man ordinarily looks for the protection of his rights, not unfrequently turns away from the individual, withdrawing its protection, and becoming a strong engine of oppression.

It has been said, “inter arma leges silent.” The laws were not silent during our late civil war, but, under the restored authority of the government of the United States, it has been found necessary to set aside and disregard many of the acts of legislation passed by an insurgent people. This court has declared unconstitutional the so-called stay laws ; but we are compelled to attach such significance to them as will at least preserve the rights and equities of the people, so far as we have the authority to do.

A question is raised upon the record in this case, which the very learned counsel have not discussed, nor should we deem it necessary to the decision of the case, were it not that we are divided in opinion upon it.

It is thought that the law of ninth of November, 1866, attaching a lien to judgments, could have no application to judgments rendered prior to the passage of the act, and that such a law would be unconstitutional, as impairing the obligation of contracts.

A majority of the court conceive it to be clearly within the power of the Legislature to apply the act to judgments previously rendered, as well as those to be rendered in the future.

The law simply applies to the enforcement of the remedy, impairing no obligation of the contract. (See Crawford v. Bender, decided at the last term of this court, and numerous decisions therein cited.)

Cooley, in his learned work on constitutional limitations, after discussing the obligations of a contract, gives us so able a view of this question that we must be excused for introducing lengthy extracts, with citations of very numerous authorities : “ 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.

“There are few laws which concern the general police of a State, or the government of its citizens, in their intercourse 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, duration or discharge of contracts. (Washington, J., in Ogden v. Saunders, 12 Wheat., 259.)

“But the changes in these laws are not regarded as necessarily affecting the obligation of contracts. Whatever belongs merely to the remedy may be altered according to the will of the State, provided the alteration does not impair the obligation of the contract (Bronson v. Kenzie, 1 How., 316, per Taney, Ch. J.); and it does not impair it, provided it leaves the parties a substantial remedy, according to the course of justice as it existed at the time the contract was made. (Stocking v. Hunt, 3 Denio, 274; Van Baumbach v. Bade, 9 Wis., 578; Bronson v. Kenzie, 1 How., 316; McCracken v. Hayward, 2 How., 608; Butler v. Palmer, 1 Hill, 324; Van Rensalaer v. Snyder, 9 Barb., 302, and 13 N. Y., 299; Conkey v. Hart, 14 N. Y., 22; Guild v. Rogers, 8 Barb., 502; Story v. Furman, 25 N. Y., 214; Coriell v. Ham, 4 Green (Iowa), 455; Heyward v. Judd, 4 Minn., 483; Swift v. Fletcher, 6 Minn., 550; Maynes v. Moore, 16 Ind., 116; Smith v. Packard, 12 Wis., 371; Grosvenor v. Chesley, 48 Me., 369; Van Rensalaer v. Ball, 19 N. Y., 100; Van Rensalaer v. Hays, ib., 68; Litchfield v. McComber, 42 Barb., 288; Paschal v. Perez, 7 Tex., 365; Auld v. Butcher, 2 Kansas, 155; Kenyon v. Stewart, 44 Penn. St., 179; Clark v. Martin, 49 Penn. St., 299; Rison v. Farr, 24 Ark., 161; Sanders v. Hillsborough Insurance Company, 44 N. H. 238; Huntzinger v. Brock, 3 Grant’s cases, 243; Mechanics, etc., Bank Appeal, 31 Conn., 63.)

“It has accordingly been held that laws changing remedies for the enforcement of legal contracts will be valid, even though the new remedy be less convenient, than the old, or less prompt and speedy. (Ogden v. Saunders, 12 Wheat., 270; Beers v. Haughton, 9 Pet., 359; Bumgardner v. Circuit Court, 4 Mo., 50; Tarpley v. Hamer, 17 Miss., 310; Quackenbush v. Danks, 1 Denio, 128; 3 Denio, 594; and 1 N. Y., 129; Bronson v. Newberry, 2 Doug. (Mich.), 38; Rockwell v. Hubbell’s Adm’rs., ib., 197; Evans v. Montgomery, 4 W. and S., 218; Holloway v. Sherman, 12 Iowa, 282; Sprecker v. Wakeley, 11 Wis., 432; Smith v. Packard, 12 Wis., 371; Morse v. Goold, 11 N. Y., 281; Penrose v. Erie Canal Company, 56 Penn. St., 46.)

“Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct. (Sturges v. Crowninshield, 4 Wheat., 122, per Marshall, Ch. J.) A statute allowing-the defense of want of consideration in a sealed instrument previously given, does not violate the obligation. of contracts. (Williams v. Haines, 27 Iowa, 251.) To-take a strong instance, although the law at the time the-contract is made permits the creditor to take the body of his debtor in execution, there can be no doubt of the-right to abolish all laws for this purpose, leaving the-creditor to his remedy against property alone. ‘ Confinement of the debtor may be a punishment for not performing his contract, or may be allowed as a means-of inducing him to perform it. But the State may refuse to inflict this punishment, or may withhold this-means, and leave the contract in full force. Imprisonment is no part of the contract, and simply to release the prisoner does not impair the obligation.’ (Sturges v. Crowninshield, 4 Wheat., 122, per Marshall, Ch. J.; Mason v. Haile, 12 Wheat., 370; Bronson v. Newberry, 2 Doug., (Mich.,) 38; Maxey v. Loyal, 38 Ga., 540.) CsTor is there any constitutional objection to such a modification of those laws which exempt certain portions-of a debtor’s property from execution as shall increase the exemptions, nor to the modifications being made applicable to contracts previously entered into. The State may, if it thinks proper, direct that the necessary implements of agriculture, or the tools of the mechanic, or articles of necessity in household furniture, shall,, like wearing apparel, not be liable to execution on judgments. Regulations of this description have always been. considered, in every civilized community, as properly belonging to the remedy, to be exercised or not, by every sovereignty, according to its own views of policy and humanity. It must reside in every State, to enable it to secure its citizens from unjust and harassing litigation, and to protect them in those pursuits which are necessary to the existence and well being of every community. (Bronson v. Kenzie, 1 How., 311, per Taney, Ch. J.; Rockwell v. Hubbel’s administrators, 2 Doug. (Mich.), 197; Quackenbush v. Danks, 1 Denio, 128; 3 Denio, 594, and 1 New York, 129; Morse v. Goold, 11 N. Y., 281; Sprecker v. Wakeley, 11 Wis., 432; Cusic v. Douglass, 3 Kansas, 123; Maxey v. Loyal, 38 Ga., 531; Hardiman v. Downer, 39 Ga., 425.) The increase in exemptions, however, must not go to the extent to render the remedy nugatory or impracticable. (Stephenson v. Osborne, 41 Miss., 119.) It has been decided that a homestead exemption may be made applicable to previously existing contracts. (Hill v. Kessler, 63 N. C., 437; Hardiman v. Downer, 39 Ga., 425.) ‘ Statutes pertaining to the remedy are merely such as relate to the course and form of proceedings, but do not affect the substance of a judgment when pronounced.’ (Per Merrick, Ch. J., in Morton v. Valentine, 15 La. An., 153.)

“And laws which change the rules of evidence, relate to the remedy only; and while, as we have elsewhere shown, such laws may, on general principles, be applied to existing causes of action, so, too, it is plain that they are not precluded from such application by the constitutional clause we are considering. (Neass v. Mercer, 15 Barb., 318. On this subject, see the discussions in the Federal courts, Sturges v. Crowninshield, 4 Wheat., 122; Ogden v. Saunders, 12 Wheat, 213; Bronson v. Kenzie, 1 How., 311; McCracken v. Hayward, 2 How., 608.) And it has been held that the Legislature may even take away a common law remedy altogether, without substituting any in its place, if another and efficient remedy remains. Thus, a law abolishing distress for rent has been sustained as applicable to leases in force at its passage. (Van Rensalaer v. Snyder, 9 Barb., 302, and 13 N. Y., 299; Guild v. Rogers, 8 Barb., 502; Conkey v. Hart, 14 N. Y., 22.) And it was also held that an express stipulation in the lease, that the lessor should have this remedy, would not prevent the Legislature from abolishing it, because this was a subject concerning which it was not competent for the parties to contract in such a manner as to bind the hands of the State. In the language of the court, ‘ If this is a subject on which parties can contract, and if their contracts, when made, become by virtue of the Constitution of the United States, superior to the power of the Legislature, then it follows, that whatever at any time exists as part of the machinery for the administration of justice, may be perpetuated, if parties choose so to agree. That this can scarcely have been within the • contemplation of the makers of the Constitution, and that if it prevail as law it will give rise to grave inconveniences, is quite obvious. Every such stipulation is in its own nature conditional upon the lawful continuance of the process. The State is no party to their contract. It is bound to afford adequate process for the enforcement of rights, but it has not tied its own hands as to the modes by which it will administer justice. Those from necessity belong to the supreme power to prescribe, and their continuance is not the subject of contract between private parties. In truth, it is not at all probable that the parties made their agreement with reference to the possible abolition of distress for rent. The first clause of this special provision is, that the lessor may distrain, sue, re-enter or resort to any other legal remedy ; and the second is, that in cases of distress the lessee waives the exemption of certain property from the process, which by law was exempted. This waiver of exemption was undoubtedly the substantial thing which the parties had in view; but yet, perhaps, their language cannot be confined to this object, and it may, therefore, be proper to consider the contract as if it had been their clear purpose to preserve their legal remedy, even if the Legislature should think fit to abolish it. In that aspect of it, the contract was a subject over which they had no control.’ (Conkey v. Hart, 14 N. Y., 30; citing Handy v. Chatfield, 23 Wend., 35; Mason v. Haile, 12 Wheat., 370; Stocking v. Hunt, 3 Denio, 274; and Van Rensalaer v. Snyder, 13 N. Y., 299.)”

If this reasoning and this authority do not fully and beyond a doubt settle this question, we confess we are yet in gross ignorance of the true interpretation of the Constitution of the United States, and of the powers of the several State Legislatures under their Constitutions.

For the reasons herein given, the judgment of the district court is reversed, and the cause remanded.

Ogden, J.

Being unable to concur in the opinion of the court in this case, I deem it my duty to briefly state the grounds of my dissent.

In the first place, it may be assumed as an incontrovertible rule that the legislative power to enact laws is absolute, provided it is not exercised in conflict with the fundamental law of the land, or in violation of the natural and inalienable rights of the citizens. (Sedgwick on Stat. and Con. Law, 152; Dwarris on Stat. and Con. Law, 122, 314.) And Justice Cooley says, substantially, the legislative power must be understood to be full and complete, as the sovereign power of the country (Cooley’s Con. Lim., 87); and therefore, when the Legislature has enacted a law with all requisite formalities, not subject to the Constitutional limitation, it becomes the expression of an absolute sovereignty, and entitled to the respect and obedience of every functionary of government, whether executive or judicial, as well as every citizen of the State. It follows that whenever the legislative will has been constitutionally expressed in plain and intelligible words, there is no legitimate power in the land to alter, change, or construe the expression of that will. (Thompson v. Buckley, 1 Texas, 35.) Mr. Sedgwick, in considering the judicial power over statutory enactments, says, 6‘that if the intention of the law-makers is expressed in a manner devoid of contradiction and ambiguity, there is no room for interpretation or construction, and the judiciary are not at liberty, on considerations of policy or hardship, to depart from the words of the statute.” (Sedgwick on Stat. and Con., 295.) And Judge Cooley, in reiterating the same doctrine, says, “It is to be presumed that language has been employed with sufficient precision to convey it (the intent), and unless examination demonstrates that the presumption does not hold good in the particular case, nothing remains except to enforce it.” (Cooley on Con. Lim., 55.) But instances may arise when the language used may be capable of two meanings, or may be so indefinite as not to express any distinct meaning, in which case it is the duty of the courts, after a thorough comparison of every expression in the whole act, to so interpret the language, and construe the meaning of the Legislature, as to make every part harmonize in the best rule possible for the promotion of the general good. (Dwarris on Stat. and Con., 47.)

With the foregoing rules of judicial decision as a guide, what should be the proper construction of the statute of the ninth of November, 1866?—the first •clause of the first section of which reads as follows: “ That whenever final judgment shall be rendered by any court of record of this State, such judgment shall be a lien on all the real estate of the judgment debtor, situated in the county where the judgment is rendered, from the date of the judgment.” I have been unable to discover any ambiguity or uncertainty in the language of this act. It is in plain and intelligible words, and in itself cannot possibly have but one meaning ; but simply declares the present will of the Legislature, that from and after the passage of that act, all judgments which shall be rendered by any court of record shall be a lien on all the real éstate of the debtor. This act, in my judgment, can by no possibility have any reference to any debts, but judgments which were rendered after the passage of the act. The whole language most •clearly has reference to the future tense only. But the learned counsel for appellant contends that the verb shall be refers to the past tense, and gravely proposes to appeal from Bindley Murray and the schoolmaster to the judicial view of the question. I have yet to learn that legal principles are, or should be, enunciated in violation of the most simple rules of grammatical ■construction ; and I have also to learn that courts should add to, or take from, the language of a statute, in order to change the gender of a noun, or the tense of a verb, ■so as to force upon a statute a meaning foreign to its legitimate and grammatical construction. But if the construction of the verb, shall be, given by the court, or that of the counsel for appellant, be adopted in the first clause of the act, there is no reason that it should not be adopted in the second clause, and that would render the whole act an absurdity. It is, however, believed that no such strained construction or judicial legislation was contemplated by the law-making power. Indeed, the Legislature had no right to think that any such legislation was needed; and the very fact that under the* then existing laws there could be no such legislation required, is conclusive proof that the act was not intended to have a retroactive effect. Up to the day of the passage of that act, there was a law in full force abundantly providing for, creating, and preserving judgment liens, and the Legislature had no right to suppose that creditors had disregarded the law, and neglected to secure the right given them by statute. Had the appellant been watchful of his own interest, and registered his judgment in the county court, as the law authorized him to do, there would have been no necessity for legislation for his benefit, and the courts would not now be importuned to give him, by a kind of judicial legislation, that which he had lost by his own laches. It is intimated, in the opinion of the court, that the late war had prevented the appellant from securing his rights; but I was not aware that during the war a person could not register a deed or judgment to secure Ms lien. But the act of 1866 declares that the lien shall take effect from the-date of the judgment; if, therefore, the construction given to that statute by the decision in this case be a, correct one, then in this case it related back for six years; and if it could relate back for six years, why not for twenty? and create a lien in violation of the law-then in force, and, in my opinion, be in direct violation of the Constitution, which declares that “noretroactive law, or any law impairing the obligation of contracts, shall be made,” and in total disregard of every elementary authority on that subject. , Blackstone says, “all laws should be therefore made to commence in futuro;'1'1 “if not, they would be worse than the laws of Caligula, which were made for the purpose of enslaving the people.” (Blackstone’s Com., 1 Vol., 46.) Mr. Dwarris very forcibly contends that “to establish a rule by which a person should be required to shape his past conduct, would be to legislate an absurdity ; that retrospective laws are inconsistent with the idea of a law as a rule of civil conduct.” (Dwarris, Stat. and Con., 165.) Mr. Sedgwick, after examining the laws and decisions of England to a great length, comes to the conclusion that a statute must have a prospective effect only, unless the will of the Legislature is clearly expressed to the contrary ; and he says, “ In this country the same opposition to giving statutes a retroactive effect has been manifested, and such is the general tenor of decisions.” (Sedgwick, Stat. and Con., 191.) Judge Cooley adopts the same general rule, and says, “It is a sound rule of construction to give a statute a prospective operation -only, unless its terms show a legislative intent that it should have a retrospective effect.” (Cooley’s Con. Lim., 370.)

It is not denied, by any known authority, that the Legislature may, by express enactment, especially when not prohibited by the Constitution, pass laws in some instances which shall have a retroactive effect, such as to cure some defect in legal proceedings, some irregularity in the assessment of taxes, some irregularities in elections, and the like, when the statutory power has failed of due execution, or acts regulating the collection of debts, legalizing imperfect mortgages, and in some other cases, where the statute would regulate and not create nor destroy vested rights. But, in these cases, there must be no constitutional prohibition, and the statute must expressly declare the retroactive effect. (Cooley’s Con. Limitation, 370-372.) In the case at bar, there is no express will of the Legislature that this act of 1866 should have a retroactive effect. And our Constitution expressly prohibits the making of such a law.

The opinion in this case declares that the law of 1866 “applies to the enforcement of the remedy, and impairs no obligation of contract.” But, in my humble opinion, the effect will be the reverse in this case, as it will affect no remedy, but destroy a vested right in one, and give it to another. It is believed that the appellant will consider the decision of this case something more than an application of a remedy, for it creates in him a lien which he had never had, and guarantees the payment of his debt, which he had lost by his own neglect. It is also believed that the appellee will consider this law, as construed, rather a severe application of a remedy, as it will in effect rob him of the fruits of his vigilance in the collection of his debt, and now take from him the land he has bought and paid for, and give it to another, who is not entitled to it on account of his laches alone. A legitimate supposition would also show most conclusively that the law of 1866, as construed by the court, might materially affect the vested rights and interests of third parties. It is admitted by the court, that from 1861 to 1866 there was no judgment lien on the land of Hardiman, the original debtor, and that during that time Hardiman had the absolute right to alienate or otherwise dispose of the same. Had this been done, then the rights of innocent third parties might have attached. But the law of 1866 declares that the lien shall take effect from the date of the judgment. If, therefore, that law is construed to relate to judgments previously rendered, it would inevitably follow that innocent purchasers, who had received good titles at the time of their purchase, would be despoiled of their property contrary to every principle of justice and equity, in order to award it to a party who had slept upon his rights for nearly six years.

I have been unable to examine the great number of authorities referred to in the opinion, which were copied with the extracts from Cooley on Constitutional Limitation, because of their great number, and because some are not found in the library, but more especially because it is admitted that the propositions enunciated in the opinion, as decided in the cases referred to, are correct principles of law, and yet, in my humble judgment, have no application to the case at bar.- From the considerations herein expressed, I am unwilling to concur in the judgment of the court in this cause.

I am fully of the opinion that the Legislature never intended that the law of 1866 should have a retroactive effect; that if it had so intended, it failed to embody that intention in the statute; and that if it had so intended and had so declared, then it had no power or authority to pass such a law, and its act in that respect would be null and void. There may have been an error in the judge’s charge, in relation to dormant judgments, but in my opinion of the law of the case, it is wholly immaterial whether appellant’s judgment was dormant or not. I am of the opinion that the judgment of the district court should be affirmed.

Reversed and remanded.