On the 25th day of June, 1870, one Solomon Miller obtained judgment against William D. Pennington for the sum of $783.00 in the circuit court of Pulaski county. This judgment was based on a note given by Pennington to Miller in 1860.
On the 10th of February, 1871, Miller caused an execution to issue on said judgment against Pennington, by virtue of which W. S. Oliver, sheriff of Pulaski county, on the 2áth day of February, 1871, levied on certain real estate as the property of Pennington, and by him advertised for sale on the 18th day of March, 1871. At this sale John McOlure was the purchaser of certain of the lands so levied upon and sold.
At the May term, 1871, of the Pulaski circuit court, McClure filed a petition against Oliver, reciting the above facts, together with a full description of the land so bought by him, and praying a rule on the said Oliver to require him to execute a sheriff’s deed to McOlure for the property purchased by him.
To this petition the sheriff filed a demurrer for the reason “ that said plaintiff (McOlure) is not entitled to a deed until one year from the date of the sale therein (the petition) named.” Demurrer was overruled by the circuit court, and the sheriff ordered by the court to execute deed to McOlure for the lands described in the petition. From this ruling Oliver appealed to this court.
At the time the contract or note was made, to-wit: in 1860, by the laws of this state, the property of judgment debtors, both real and personal, when sold under execution, was sold absolutely, and all the title of the debtor passed to the purchaser. In the case of lands being sold, the sheriff executed a deed to the purchaser which passed all the title, legal aiid equitable,- of the judgment debtor, without any right of redemption.
Such remained the law until the adoption of the code, which was in force at the time of the rendition of the judgment of Miller v. Pennington, (June 1870), as well as when the sale was made. Section 691 of the code provides that “ when any real estate, or any interest therein, is sold under execution, the same may be redeemed by the debtor from the purchaser, or his vendees, or the personal representatives of either, within twelve months thereafter.” Sec. 692 provides the manner of redemption, and requires the purchase money to be deposited with the clerk with fifteen per cent, per annum thereon. Sec. 693 provides that the sheriff shall give the purchaser of any real property sold upon execution a certificate of sale, and that “ no conveyance shall be made to the purchaser, nor the possession delivered to him, until the time for redeeming has expired,” and if redeemed, the sale and certificate of purchase shall be null and void. Other sections provide that other judgment creditors may redeem, and the manner thereof.
The only question involved in this case is, whether the provisions of the code, above referred to, permitting the redemption of lands sold under execution, do or can constitutionally apply to judgments rendered on contracts made before the adoption of the code.
Under the law as it stood, when the contract between Miller and Pennington was made, a creditor, after obtaining a judgment against his debtor, had a right to subject his lands to absolute sale, and the purchaser received a deed from the sheriff, and at once entered upon the use and enjoyment; he purchased not an equitable or contingent estate, but all the estate that the judgment debtor had in the lands.
Whatever rights Miller had, in the case at bar, passed to the purchaser, McClure; and in the determination of the question it matters not that McClure, a stranger, purchased rather than Miller, for the purchaser of lands sold under exe* cution, to satisfy a judgment, stands in the place of the judgment creditor, and is entitled to all the rights and privileges growing out of that relation. Spindler v. Atkinson,
The main inquiry then is, Did the law governing sales under execution, in force at the time, enter into and become a part of the contract between Miller and Pennington ?
Sec. 10 of art. I of the constitution of the United States provides that “ no state shall * * pass any bill of attainder, ex post facto law, or law impairing the obligation of con tracts., Sec. 13 of art. I of our constitution is to the some purport.
This provision has so often been under discussion in the federal and state courts, that we cannot do better than to-briefly review what has been held by the courts in cases similar to this.
In the case of Burton v. Bolander, 4 G. Greene (Iowa), 393, and Corriel v. Ham, id., 455, the court say that execution laws enter into and become a part of the contract, and in the latter case say that, so far as execution laws are merely remedial, they may be modified and changed at any time, but that while remedial directions to the. officers of the law for enforcing those rights may be changed, the substantial rights of parties, under the contract, cannot be changed or impaired by subsequent laws.
The case of Rosier v. Hale et al., 10 Iowa., 470, was one where the sheriff, by virtue of an execution, sold certain lands to the highest bidder, disregarding a statute in force at the date of judgment and sale, which required that on sales under execution the sheriff should cause the property to.be appraised, and requiring the property to bring two-thirds of its appraised value. The judgment in this case was rendered on a contract made prior to the appraisement law, and the court again held that the law in force at the time of making the contract governed, and that the appraisement law could not constitutionally apply to contracts made prior to its passage. Again in Malony v. Fortune,
In Willard v. Longstreet, 2 Douglass (Mich.), 172, the court held the provisions of a statute prohibiting the sale of property on execution, unless it would bring two-thirds of its appraised value, so far as it applied .to the remedy to enforce preexisting contracts, unconstitutional and void, and that the judgment creditor hada right to insist on a sale in accordance with the law in force at the making of the contract. This rule has been subsequently affirmed by the courts of that state.
In Bungardner v. The Circuit Court of Howard County,
Again in Stevens v. Andrews, Sheriff,
In a careful and well considered opinion by Judge Hay-"WOOD in 1 Peck. (Tenn.), 1, he says': “The contract is made by the parties, and if sanctioned by law, it promises to enforce performance, should the party decline performance himself. The law is the source of the obligation, and the extent is defined by tbe law in force at the time the contract is made. If this law direct a specific execution, and a subsequent act declares there shall not be a specific execution, the -obligation of the contract is lessened and impaired. The legislature may alter remedies, but they must not, so far as regards antecedent contracts, be rendered less efficacious or more dilatory than those ordained by the law in being when the contract was made.”
In Goenen v. Schroeder,
Similar doctrine was held in
The California supreme court, in Thorne v. San Francisco,
We come now to examine the leading cases in the United States supreme court, and which have been the ruling authorities relied upon in all the state courts. Bronson v. Kinzie et al.,
Chief Justice Taney, who delivered the opinion of the court, says that “ as concerns the obligations of the contract upon which this controversy has arisen, they depend upon the law of Illinois as they stood at the time the mortgage deed was executed. The mortgage, given to secure the debt, was made in Illinois, for real property situated in that state, and the rights which the mortgagee acquired in the premises depended upon the laws of that state. In other words, the existing laws of Illinois created and defined the legal and equitable obligations of the mortgage contract.”
Again, he says: “'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. But if that effect is produced, it is immaterial whether it is done by acting on the remedy, or the contract itself. In either case it is prohibited by the constitution.”
“ There is no covenant (still quoting from the opinion) giving the mortgagor the right to redeem by paying the money after the day limited in the deed, and before he was foreclosed by the decree of the court of chancery. Yet no one doubts his right or his remedy; for, by the laws of the state then in force, this right and this remedy were a part of the law of the contract, without any express agreement by the parties. They were annexed to the contract at the time it was made, and formed a part of it, and any subsequent law, impairing the rights thus acquired, impairs the obligations which the contract imposed.”
It will be perceived that this case was not decided upon any of the covenants contained in the mortgage, but on the broad, general principle that the laws of the state entered into and formed a part of the contract, and any subsequent law which obstructed the rights thus conferred and acquired by the law itself, impaired the obligation of the original contract, and was void.
In the case of McCracken v. Hayward,
In Howard v. Bugbee,
We can see no difference in the principle involved in the case at bar, and the one decided by the supreme court of the United Slates, and whatever might be our individual opinion, are bound to follow their rulings on any question regarding the federal constitution, as much as the inferior courts of this state are bound to follow ours.
While in the case of Bronson v. Kinzie, the contract under consideration was a mortgage, yet the court, in that case, expressly put it on the ground of the statute entering into the contract, and not by reason of any of the express conditions of the mortgage.
While it is true that the state may change and alter remedies, extend or limit the time that notice may be given — they might give the defendant to the second term of the suit brought to answer, and do many other things touching the remedy, yet they must not, in acting on the remedy, interfere l^with any right accruing under the contract, whether that right be by express stipulated contract, or be the result of the law. Counsel for the appellant insist that the legislature may alter and change the remedy ad libitum, and cite many authorities to that effect, which we have carefully examined, and with the exception of the case in
The provision of the Code for redemption, instead of allowing an absolute sale of the property, as was the law when Miller and Pennington made the contract, provides for a conditional sale, or in other words, it authorizes the sheriff to make a contract for the absolute sale of property after the lapse of one year’s time, unless such contract be defeated by the performance of a specified condition, to wit, the return of the purchase money paid, with interest, before the expiration of the year.
If the statute for the enforcement of the right enters intcP and becomes a part of the contract, and so we understand the supreme court of the United States, then if the contract be for the absolute sale of property, a law like unto the provisions of the Code materially impairs the obligation of that contract, and, as to such prior contracts, is void ; for the right to sell the absolute fee with immediate possession to the purchaser, is worth infinitely more, and much more likely to realize the fulfillment of the contract, to wit, the payment of the money, than the conditional sale provided for by the Code.^
Rinding no error in the record, the judgment of the court below is affirmed.