224 Wis. 422 | Wis. | 1937
Lead Opinion
In support of its appeal the appellant contends, (1) that in making the order appealed from the court abused its discretion; (2) that the court was without jurisdiction to make the order.
(1) A detailed statement of the facts bearing upon the court’s discretion to make the second order of extension is given preceding the opinion. From this statement it appears that the defendant has no equity in the property not included in the land contract that was mortgaged to the plaintiff to secure the note accepted as a part payment on the contract, so that it can realize nothing from that property to aid in raising the remaining sum due on the land contract. Nor can it derive any aid from the income from that property. Nor can it realize from the income of the property directly in suit the sum necessary to redeem the property. Were this a case of foreclosure of a land contract involving an ordinary situation, we might hold that the court abused its discretion in prolonging the period of extension to three years. Before enactment of the statutory provision for the one-year period of redemption, which was “emergency legislation,” and jus
But here we have an extraordinary situation. The defendant charity is keeping up and has to a considerable extent improved the property. The property is only suitable for use as a hospital. It has no perceivable rental value for such use. There is no sale for the propertyThere is no likelihood of its deteriorating in market value. The plaintiff is receiving monthly the interest on the whole unpaid principal sum. This manifestly exceeds the rental value of the property, if any such value it has. The property as used is exempt from taxation, so that no loss can come to the plaintiff through tax sale or tax deed. The plaintiff is subjected to no monetary loss by the extension granted. True, the defendant shows no reasonable prospect of ability to redeem. Still it has hope that through a drive and the gifts of charitably disposed persons it may achieve the unexpected. On the whole, as we do not perceive that the plaintiff has lost anything by the extension appealed from, or that it would have gained anything but vindication of an abstract right at most had the extension been denied, we are of opinion that the trial court did not abuse its discretion in granting the last extension.
(2) The contentions under this head seem to be two : (a) That the provision of the original statute making it apply to
(a) According to the terms of the statute as it stood when the judgment was entered, the court might grant a period of redemption of only “one year.” Sec. 281.25, Stats. 1933. The act that so provided was declared to be “emergency legislation,” and was made applicable to judgments entered before April 1, 1937, and to judgments theretofore entered which had not become absolute at the time of the statute’s enactment. Ch. 301, Laws of 1933. By ch. 362, Laws of 1935, this provision was amended by substituting the words “three years” for the words “one year.” This was the only change made. The declaration of the previous statute “this is emergency legislation” is expressly repeated in the amending statute. The appellant claims that this amending act had no effect on judgments entered prior to its passage, and conferred no power upon the court to make the order appealed from, which extended the period of redemption to three years from the time the judgment was entered.
The provision of the original act applying to judgments not becoming absolute, sec. 281.25 (2), Stats. 1933, still stands unchanged. Sec. 281.25 (2), Stats. 1935. It'reads: “In all actions where judgment has not been'made absolute at the time that this section goes into effect thé defendant may apply to the court for the relief provided herein.” The judgment herein was not entered when the “section” went into effect, and therefore it had not then “become absolute.” Literally the “section” applies to the instant case. While the “section” as originally enacted provided for a redemption period of only one year, we have no doubt that the legislature in increasing the period to three years meant the word “section”
It is urged in this connection that the statutes are not to be held retroactive unless such intent is expressed or made manifest by the language used. The statute as originally enacted expressly made itself retroactive as to judgments already entered but not become absolute. That language still stands in the statute as amended. We are of opinion that the intent originally expressed inheres in the amending act. Remedial statutes may be made retroactive unless they violate due process, impair contract obligations, or violate other constitutional provisions. “The legislature may modify, limit or alter the remedy for enforcement of a contract without impairing its obligation, but in so doing, it may not deny all remedy or so circumscribe the existing remedy with conditions and restrictions as seriously to impair the value of the right.” Richmond Mortgage & Loan Corp. v. Wachovia Bank & T. Co. 300 U. S. 124, 128, 57 Sup. Ct. 338, 339, 81 L. Ed. -. The instant statute and order appear to us to be within the rule and not within the exception above stated.
(b) The contention made under this subhead is based upon the decisions of the Kansas supreme court and a federal district court of Kansas, Kansas City Life Ins. Co. v. Anthony, 142 Kan. 670, 52 Pac. (2d) 1208, 1210, and Phœnix Joint Stock Land Bank v. Dewey, 8 Fed. Supp. 678. The Kansas statute provided for extension of the period of exemption in mortgage foreclosure cases. It was not enacted until after the judgments involved in the cases cited were entered. The ground on which the decisions were based was that the judgments were res judicata, and the court was without power to change the period of redemption after it had been fixed by a judgment. It may be here stated, before distinguishing the instant statute from those involved in the cases above cited, that the instant statute was considered by this court in Benkert v. Gruenewald, 223 Wis. 44, 269 N. W. 672. The judgment involved in that case was entered before
The statutes involved in the Kansas cases cited were not limited in their application to judgments “not become absolute” as in the instant statute. As indicated above, the decisions above cited under the Kansas statute are based upon the proposition that the judgments involved were final judg
If the statute involved purported to interfere in any way with a judgment of any court, there might be force to the
The mere fact that the period for redemption was extended for three years in the instant case does not of itself render the extension granted beyond the power of the court to grant. That is the period of redemption provided in the amended Frazier-Lemke act upheld by the supreme court of the United States on March 29, 1937, in Wright v. Vinton Branch of Mountain Trust Bank of Roanoke, 300 U. S. 440, 57 Sup. Ct. 556. Such extension is authorized by the amended act above mentioned on condition that the mortgagor pay the rental value of the premises during the extended period. If the payment of the rental value of the premises were not imposed as a condition of the extension by the instant order, we might have a different question. But, as indicated in (1) above, the full equivalent of such payment is provided by the instant order. The vendor’s right in strict foreclosure is restoration of the possession of the property. The rental value is the equivalent of that value. Rental value is the measure of the value of possession. . If a three
By the Court. — The order of the circuit court is affirmed.
Dissenting Opinion
The following opinion was filed June 21, 1937:
(dissenting). I am not persuaded by my examination of defendants’ showing that it has disclosed any prospects that an extended period for redemption will enable it to save its interest in the property. While the situation with respect to a charitable institution is doubtless different from that of an individual or business corporation in that there is always a possibility of raising funds by public appeal, there is nothing here to show that such action is either practical or contemplated. Under these circumstances and applying the doctrine of Benkert v. Gruenewald, 223 Wis. 44, 269 N. W. 672, it seems to me that the extension was not a proper exercise of judicial discretion.