7 Cal. 479 | Cal. | 1857
Lead Opinion
delivered the opinion of the Court—Terry, J., concurring.
Passing by the question, whether a parol sale of real estate was good under the Mexican law, and treating the written instrument as a conveyance from Fernandez to Uoe, we will proceed to inquire what the effect of such a conveyance is as against a subsequent purchaser in good faith. This inquiry involves three questions: 1st, "Whether the forty-first section of the Recording Act requires conveyances made before the passage of the act to be recorded ? 2d, If the terms of the act extend to such conveyances, is the law unconstitutional ? 3d, Was the defendants’ possession notice of their title ?
The act concerning conveyances, passed April 30th, 1850, provides the mode in which conveyances shall be made, acknowledged, and recorded. That when so made and recorded, they shall impart notice of their contents to all persons; and if not so made and recorded, they shall be void as against subsequent purchasers in good faith. §§ 24, 25, and 26. The forty-first section of the act provides that all conveyances of real estate theretofore made and acknowledged, or proved according to the laws in force at the time of such making, and acknowledgment or proof, shall have the same force as evidence, and be recorded in the same manner, and with like effect, as conveyances executed in pursuance of this act.
It is contended that this section does not require these conveyances to be recorded, but .simply permits them to be. That when so recorded, they do not impart notice, but are allowed to be used as evidence, and that there is no penalty for the non-recordation thereof.
In order to arrive at a correct understanding of the intention of the Legislature, it will be necessary to examine the whole act. The design was to establish a system of constructive notice in relation to conveyances affecting real estate. At that time all the lands not claimed by patent from the Mexican government were supposed to belong to the United States. Years would intervene before these lands could be surveyed and brought into the market, and it does seem absurd to suppose that the Legislature intended to require future conveyances 'to be recorded under certain penalties, and leave the originals from which they derive their validity to rest in undertainty and doubt.
The act must be taken as a whole. In the foregoing sections the duty of recording future conveyances is enjoined, and the penalty declared in the forty-first section, which is but a continuation. It is provided that past conveyances shall be recorded in the same manner, and with like effect. It is true, that the section does not say in so many words that, unless so re
We will proceed next to inquire if the forty-first section of the act is in conflict with the Constitution of the United States, or of the Constitution of the State of California.
It is claimed, first, that the act conflicts with that provision of the Constitution which forbids the States from passing laws impairing the obligations of contracts; and second, that it is obnoxious to our Constitution, because it divests vested rights.
It is difficult to see how it can be claimed that this act impairs the obligation of contracts. A sells his lands to B, before the passage of the act; the deed contains covenants of warranty and seizin. The law does not impair the obligation of the contract, by declaring that A shall not be liable on his covenant to B, neither does it say that the fee shall be divested, or that B shall have less, or A retain anything in the land sold; between them, the statute expressly declares the conveyance shall be good. But as to third parties, it says, if B does not make his title known by recordation, thereby giving constructive notice of Ms right, and A sells to an innocent purchaser who has no notice of B’s title, B shall be deemed guilty of fraud, and his conveyance shall be postponed to that of an innocent purchaser. The contract between the original parties is not interfered with. A has passed all his title in the land, and B is the owner thereof. If B chooses to neglect his duty, as pointed out by the law, and another, in ignorance of his rights, purchases the land, how can B avail himself of his own laches ?
It appears to us, that one of the purposes for which government was ordained, was to protect and give security to property, and if salutary laws of this character, ordained for public convenience and to prevent the perpetration of fraud, cannot be passed, that the Legislature is impotent indeed.
In Jackson v. Lamphier, 3 Peters U. S. Rep., p. 289, the Court say : “ It is within the undoubted power of State Legislatures to pass recording acts, by which the elder grantee shall be postponed to a younger, if the prior deed is not recorded within the limited time, and the power is the same, whether the deed is dated before or after the passage of the recording act. Though the effect of such a law is to render the prior deed fraudulent and void against a subsequent purchaser, it is not a law impair
In support of the contrary doctrine, the case of Yarick’s Executors v. Briggs is relied on. In this case, Chancellor Walworth, in 6 Baige, held that the power of the Legislature to pass acts requiring prior conveyances to be recorded was undoubted, but the decision turned on the point that the deed in question, executed in 1802,. was not within the act of 1813. On appeal to the Court of Errors, see 22 Wend., the decision of the Chancellor was sustained by a unanimous vote. Senator Yerplanck, who delivered the decision of the Court, dissented from the opinion of the Chancellor as to the power of the Legislature to pass acts affecting past conveyances. The statement is sufficient to show that the case cited has no authority, and that the Court did not overrule the opinion of the Chancellor, in fact; that part of the opinion to which Senator Yerplanck dissented may be regarded as mere dictum, but when we take into consideration the high authority from which it emanated, it is not without weight.
The case of Bobinson v. Bowan, 2 Scammon, Illinois Bep., has also been cited. The question there was, whether the statute was designed to act retrospectively, and it was held that it was not. It is true that Chief Justice Wilson, in commenting on the case, intimates that such a law would be unconstitutional, but as this point was not involved, it may be regarded as mere obiter.
Let us next inquire if this act divests vested rights.
Again, it may be remarked that it would be difficult to see wherein the act had such an effect. It does not take the property from one man and give it to another; it does not impair his title or take away his right, but simply establishes a rule of evidence. It says to A, if you do not record your deed, and suffer an innocent purchaser to buy your land without the notice hereby established as between yourself and such purchaser, you shall be postponed to his rights. It introduces a new rule, plain and simple, the terms of which may easily be complied with, and he who refuses to bring himself within it, ought not to be allowed to defend in a -Court of Justice. We can see no difference in principle, between this and limitation laws, or acts abolishing imprisonment for debt, or revenue acts. It might as well be
The power to regulate this subject, has never been disputed. It is the high prerogative of State sovereignty, and when properly and justly exercised, should be maintained. If the act was unreasonable or onerous in its provisions, there might be a question, but where parties have neglected for years the plain mandate of the statute, they cannot complain that it is unjust.
We come now to inquire how far the plaintiffs were affected with notice of the defendants' title, by reason of their possession. In the case of Mesick v. Sunderland, we held that it was the intention of the Legislature to do away with all constructive notice, other than that arising fromfthe record, preserving, at the same time, as far as compatible with the rule, actual notice in fact. This intention, we thought, clearly appeared from the statute concerning conveyances, which, on examination, will be found to differ from every statute in the Union on the same subject; and unless this construction be maintained, then one-half of the act must be treated as mere surplusage.
It was the first time the question had come before this Court. Judges in England and the United States had frequently regretted that a more rigid adherence to the rule had not been enforced. It was obvious that sound policy and morality required that the whole doctrine of constructive notice arising from facts and circumstances in pais, should be exploded, and nothing but the former decisions of those Courts, tied down as they were by precedent, prevented them from taking a new departure, and establishing a new rule. In this State, while our jurisprudence is in its infancy, it is competent for us to do what the Courts of other States could not; and by conforming strictly to the statute, to afford the public a safe and commodious means by which they may acquire information and protect themselves against fraud. When once the rule is understood, that every man must record his title, no hardship will be found in it, and it will serve as a protection against those who by unrecorded titles seek to perpetrate frauds upon the community.
In the case of Mesick v. Sunderland, we expressly held, that the statute did not do away with notice in fact but only constructive notice, as to those instruments required to be recorded, so that the doctrine of notice of title arising from possession, no longer obtained. But we nowhere said that possession, together with another fact, might not be admitted in evidence, for the purpose of establishing fraud or notice in [fact; such, on the other hand, was our understanding of the case, and in the present case, we think it would be proper to admit evidence of possession, as a fact tending to establish notice of title, though not a fact from which notice would follow as a conclusion of law.
In Cook v. McChristian, which was a suit involving a right of homestead, it was contended that the intention of the parties to dedicate the premises for homestead purposes should have been made in writing, and recorded in the county recorder’s office; but we held, the law did not require that such estates should be recorded, to operate as notice, and that in the absence of any statute on the subject, the common law rule obtained, and possession would put the purchaser upon notice of the occupant’s title. Such, I suppose, must be the rule in every case where the law does not require a particular species of conveyance to be recorded ; but wherever the statute has said, that certain instruments shall be recorded, to operate as constructive notice, it is absolutely necessary that the law should be complied with; otherwise they will be void as against subsequent purchasers in good faith without notice;—the doctrine of constructive notice arising from possession having been superseded or abrogated by notice established by the statute.
So far as the opinion of the Court in Mesick v. Sunderland militates against this position, it is erroneous, and cannot be sustained on principle or authority.
Judgment reversed, and cause remanded.
Dissenting Opinion
I am compelled in this case to dissent from the. opinion of my associates. That opinion sustains principles that I cannot sanction. Those principles, in my view, aie fundamental, and are too important to be conclusively settled by the former opinion of this Court. It will be necessary, in order that I may be clearly understood, to go into some detail.
I agree with my associates in considering the writing given in the record as intended for a conveyance.
In the case of Hoen v. Simmons, (1 Cal. R., 121,) there was some doubt expressed as to whether a parol sale of real estate in presentí, accompanied with delivery of possession, was sufficient under Mexican law. But it seems that in the subsequent case of Tohler v. Folsom, (1 Cal. R., 210,) the validity of such a sale is substantially admitted, and in the plaintiffs’ brief in the present case, the same admission is substantially made; but the
It would seem, then, to be a correct conclusion, that a parol sale of land in presentí, with a delivery of possession, there being no adverse claim, would, at the time, be valid under Mexican law, and that a delivery of the title-papers, or other paper-equivalent, is a symbolical delivery, and for all purposes equally valid with a delivery made by a formal entry upon the land itself, by both the parties at the time of the sale. And especially would this be true in reference to the present case. Here, the possession of the premises was taken under the conveyance, and also of the title-papers, and we hear of no objection, ever being made by Fernandez until many years afterwards. Under these circumstances, conceding that the law existing at the time the sale was made, had continued unchanged up to the date of the deed in 1854, to the plaintiffs, could either Fernandez, or any one claiming under him, have recovered the possession of the property from the defendants ? It is apprehended they could not. The substantial purposes of the law had been accomplished, and the title had vested in Hoé and his grantees.
But a new government has succeeded, with a new system of registry, and the question then arises, what effect do the provisions of our act have upon the rights of these parties. The conveyance from Fernandez to Moé was not recorded prior to the conveyance from Fernandez to the plaintiffs; and conceding that they were subsequent purchasers in good faith, and for a valuable consideration, was the conveyance from Fernandez to Hoé void as to them ? And this question divides itself into two branches. First—does a fair construction of the forty-first section of the Registry Act make this conveyance void as against subsequent purchasers ? Second—if so, is that section a violation of the Constitution of the United States, or of this State ? That section is as follows: “All conveyances of real estate heretofore made, and acknowledged or proved, according to the laws in force at the time of such making and acknowledgment of proof, shall have the same force as evidence, and be recorded in the same manner, and with the like effect, as conveyances executed and acknowledged in pursuance of this act.”
It will be perceived, that this section simply declares that those conveyances shall be “ recorded in the same manner, and
It is only by mere inference that a penalty can be inflicted in such a case, and this without any express provision of the statute. The law abhors forfeitures, and the language of a statute inflicting them should be strictly construed. When, and in what case, did a Court of Justice ever inflict a statutory punishment upon a prisoner, without express affirmative words declaring that the specific punishment should be inflicted? And I am not aware of any case, where a man was ever decided to have forfeited his property by mere inference. Penalties and forfeitures can only be incurred by a violation of an express provision. When the law-maker intends to inflict either, in common justice he ought to speak plainly, and his meaning should not be left to implication.
In Mew York, an act was passed in 1805, requiring all deeds, executed since the first of October, 1802, to be recorded on or before the first of January, 1806; but the usual penalty, that if not recorded, they should be held void as against subsequent purchasers, was omitted, and the Court of Errors held that it could not apply to deeds not required to be recorded, when made. “ The provision,” the Court said, “ for recording such prior deed, thus stands alone directory as to the manner, the time, and the place of recording the deeds of those who, without absolute legal necessity, might think fit thus to protect the evidence and muniments of their title.” 22 Wend., 548.
The twenty-sixth section of our Registry Act is in these words:
“ Every conveyance of real estate within this State, hereafter made, which shall not be recorded as provided in this act, shall be void as against any subsequent purchaser in good faith and for a valuable consideration, of the same real estate, or any portion thereof, when his own conveyance shall be first duly recorded.”
This is the only penal section in the act; and this, by its own express limitation, is confined to conveyances “ thereafter made and they are only void as against any subsequent purchaser “ when his own conveyance shall he first duly recorded.”
Mow, had it been the intention of the Legislature to extend the penal provisions of the twenty-sixth section to conveyances theretofore made, then language equally clear and explicit would
But I will take this “new rule, plain and simple,” to be true, for the sake of the argument simply, and then endeavor to show its practical effects.
It would seem to be clear, that if the penal provisions of the twenty-sixth section apply to past deeds at all, they apply to them to the same extent, and in the same manner, as they do to future deeds. It is insisted that, by the forty-first section, these past conveyances must be recorded with “the like effect,” and therefore, under the like penalties, as deeds executed in pursuance of the act. Then it would clearly follow, that he who first re
It cannot be said that the statute intended to allow a reasonable time within which these past conveyances must be recorded. When the law requires a certain act to be done, and specifies no time within which it must be performed, then a clear intention is shown to adopt the general rule of reasonable time. It may often happen that from the very nature of the case no definite time could in justice be specified; and for that reason the law leaves each case to depend upon its own peculiar circumstances. But when the law-making power exercises its own .discretion and specifies a certain time, the rule of reasonable time is clearly excluded, and the Courts must take the provision as they find it. This is especially true in reference to cases where the rights of contesting individuals are involved, and where these rights depend upon the priority of certain ,acts performed. If the time as specified in the act, be subject to a constitutional objection, then the whole provision must fall, for the reason that the Courts cannot set aside that time and adopt another without assuming the exercise of legislative power. The Legislature was not bound to pass the provision; it was matter of legislative discretion—and had it been foreseen that a change of time would be made by the Courts, it is to be presumed that the provision would not have been adopted in any form. At least it cannot be assumed, that with this change, the provision would have been made. The Registiy Act took effect from and after its passage, and this was the time specified by the law then existing. If it affected the rights acquired under prior deeds, then it affected them in the same way as it did the rights acquired under subsequent deeds; for the act makes no distinction between the two cases, if it be conceded that the provisions of the twenty-sixth section apply equally to both. Then he who first recorded his deed, made prior to the passage of the act, would hold the land to the exclusion of all others. And this he could do at once, upon the passage of the act, if he happened to know it. And this left the rights of the holder of the valid conveyance dependent upon accident, and placed him upon the same footing with the party who held the subsequent invalid deed.
That it was the intention of the act to procure the recording of these past conveyances, by offering rewards, and not by inflicting penalties, would seem clear, not only from its own explicit terms, bxrt also from the considerations already stated, and from others that will be suggested. The Mexican law required no registry of deeds, but the purchaser must take and hold possession of the property, and this possession was notice to third persons. That system did not encourage speculations in real estate, and, therefore, required continued possession by the purchaser. As no record of the deed was required, the purchaser had no means of procuring authoritative copies of his title-papers, in case of loss. The forty-first section of our Registry Act intended, therefore, to confer upon him the privilege of recording his title-papers, so that he could use certified copies of them, in evidence, in case of loss, and need not remain in the continued actual possession of his property. In other words, this section applied to those past conveyances the substance of the twenty-fourth, twenty-fifth, twenty-ninth, and thirtieth sections of the act, and not the provisions of the twenty-sixth section. These new privileges would seem to have been sufficient to induce a compliance with the provisions of the forty-first section, and to have accomplished, substantially, all the good intended, without a resort to the harsh penalties of the twenty-sixth section.
It seems to me that Courts should be should be slow in coming to the conclusion, that the most glaring and manifest injustice was intended by the Legislature. Suppose the Legislature should hereafter pass an act, to take effect at once, and it should be contended, though not expressly so stated, that the act required all deeds made prior to its passage, to be recorded over again, under the penal consequences of the twenty-sixth section; would not a Court hesitate long before coming to the conclusion, from mere implication, that such injustice was intended ? To say that deeds, good without recording when made, and deeds once properly recorded, shall be recorded in the first case, and re-recorded in the second, and allowing no reasonable and definite time, in the future, within which these acts should be performed, but giving the first recorded deed the preference, would
In the case of Varick v. Briggs, 6 Paige, 330, and 22 Wend., 543, it appeared that John Tibbitts made two deeds, one in July, 1801, and the other in August or September, 1802, and at the time of making such deeds there was no law requiring them to be recorded, as the Registry Act did not extend to the county in which the lands were situated. An act was afterwards passed by the Legislature of New York, in 1813, requiring all deeds, without exception, executed after February 1, 1799, to be recorded, under the penalty of being adjudged void, as against subsequent purchasers. Chancellor Walworth, and after him the Court of Erors, held that it was not the intention of the statute, broad and general as were its terms, to include deeds that were not required to be recorded at the time when made; and that the failure to record those deeds, under the retrospective act, did not render them void as to subsequent purchasers. And the Chancellor said, that “in construing statutes, it is not reasonable to presume that the Legislature intended to violate a settled principle of national justice, or destroy a vested title to property. Courts, therefore, in construing statutes, will always endeavor to give such an interpretation to the language used as to make it conformable to reason and justice.” And in the opinion of the Court of Errors, Senator Yerplanck said: “ I have nothing to add to the Chancellor’s reasoning as to the probable intention of the Legislature, that the act of 1813 was not to be retrospective as to all prior deeds, but was intended to apply only to conveyances of lands in counties which had already been subject to similar laws, under previous acts for recording. I assent fully to this construction.”
But conceding, for the sake of the argument, that it was the intention of the forty-first section of our Registry Act, to render void prior deeds unless recorded in accordance with its provisions, would such a statute be constitutional ?
In the case of Bronson v. Kinzel et al., (1 Howard U. S. R., 319,) the opinion of the Supreme Court of the United States, delivered by Chief Justice Taney, (an opinion distinguished alike for its clearness, simplicity, and force,) settles this point: that the law existing at the time the contract is made, enters into and forms a part of the contract itself, without any stipulation to that effect in the deed; “ and any subsequent law, impairing the rights thus acquired, impairs the obligations which the contract imposed.” The doctrine of this case is expressly affirmed in the subsequent cases of McCracken v. Hayward, (2 Howard, 608,) and McFarland v. Glwin, (3 Howard, 717,) and has become the settled doctrine of that high tribunal.
According to this principle, and the view we have taken of this case, the title to the premises in dispute fully vested in Moé
The plaintiffs’ counsel has referred to the case in 6 Paige, 330, in support of his proposition, that such an act would not be void, and the opinion of Chancellor Walworth certainly does support his view. But at the same time, the counsel, it would seem, has overlooked the fact that the opinion of the Court of Errors in this same case, overruled the opinion of the Chancellor in this respect, and held that such an act would be clearly unconstitutional and void. And this opinion of the Court of last resort was unaniihous, all the members of the Court agreeing. In the able and lucid opinion delivered by Senator Yerplanck, the only opinion delivered, will be found these words :
“ Deeds, valid and perfect at the time of their execution, and not then requiring for their full legal effect any further legal sanction, such as recording, are complete and valid executed contracts. Now the effect of a subsequent statute, enacting that such valid contracts shall be .adjudged fraudulent and void as against certain persons, unless a further legal sanction be added, must be in direct hostility to the very words' of the constitutional inhibition. The contracts themselves are impaired by being adjudged void. The obligation of the contract between A and B was before binding upon B, and all who might claim the effect of the contract by his grant or under his title. A law is passed pronouncing that, in certain cases, the contract shall bo binding only upon B, and that its former obligations shall no longer bind B’s grantees. Does not such a law impair that contract? Now it cannot be presumed that the Legislature intended to enact such an unconstitutional requirement.”
The case of Robinson v. Rowan, 2 Scammon’s Rep., 499, is a case to the same effect. In that case, Bays sold Rowan a tract of land, by deed, dated December 11, 1832, which was recorded December 11, 1833. At the time the deed was executed, the failure to record within six months made the deed void as to subsequent purchasers, but not as to creditors. But the act of 1833 made such a deed also void as to creditors. In September, 1833, Hill obtained judgment against Bays, and under the law of Illinois, this judgment was a lien upon the property of the judgment-debtor. The land was afterwards sold, by the sheriff under the judgment, and the plaintiff, Robinson, became the pur
The plaintiff’s counsel has also referred to the case of Hopping v. Burnam, 2 Green’s Iowa Rep., 39 ; and Call et al. v. Hastings, 8 Cal. Rep., 179. It will be necessary to examine these eases separately.
In the Iowa case, the unrecorded deed was executed while a statute of Michigan was in force, which required the deed to be recorded, and a registry act was afterwards passed in 1840, by the Legislature of Iowa, displacing the former law, but still requiring deeds to be recorded. As Hopping failed to record under both acts, his deed was adjudged void as against a subse-quent purchaser. And in delivering the opinion of the Court, Green, Justice, says : “ Hopping’s common law rights under the deed are adverted to, but as the deed has never been without statutory control, never for a moment released from the requirements of a recording act, it is useless for us to consider what rights he might have acquired under a law which had no bearing upon the case.” It is true, the language of the Judge would bear the construction given it by the learned counsel for plaintiff, if we leave out of consideration the facts to which he had reference; but taking the opinion as a whole, we do not understand him to have advanced the opinion assumed.
In the ease of Call v. Hastings, the question arose between persons claiming under two different mortgages, the first made in February, 1850, and recorded in the Schoolcraft records, and the second executed in May, 1850, and properly recorded. Under the Mexican law, mortgages were required to be recorded, but deeds were not. Schmidt’s Civil Law of Spain and Mexico, 181. And the point was made by counsel, that the first mortgage had not been recorded, as the Mexican law required. But it must be conceded that Justice Heydenfeldt, who delivered the opinion of the Court, (Justice Wells concurring,) expressly placed his decision upon the provisions of the forty-first section of our Eegistry Act. The facts of this case are not at all against the construction we have given the Eegistry Act.' Still, the decision is in point for the plaintiffs in this case, so far as regards
The cases that have arisen under acts requiring prior deeds to be recorded, were cases where there was a recording statute in force at the time the deed was executed, and which formed a part of the contract itself. In these cases, the Courts have sustained the statutes, and upon grounds the most rational and satisfactory. Under recording systems, the purchaser is required to record his deed, either when made, or within a given time; and if he fails to record his deed, it is only void as against subsequent purchasers. But he is always allowed to record, at any time before the rights of others have attached. When, therefore, a new Registry Act is passed, it would be unjust to prior purchasers not to allow them to record with the same effect as if the prior law had continued in force. And it is upon this ground that such provisions in the subsequent acts are predicated. It is the mere substitution of one system for another, saving the privileges of former purchasers. If, then, the purchaser has failed to record under the law existing when his deed was made, and still fails to record under a subsequent act, which also allows him to do what the law of his contract required, he has no right to complain if his deed is held void when the rights of others have attached. His title was never perfect at any time. But far different is the . case of the party who did all that was required of him, to make his title conclusive against all the world. His contract is completed, and the title fully vested in him. Ho further act being required by the law of his contract, how can the Legislature say to him, “You shall do more than the law required you to do, or you shall forfeit your estate.” It is perfectly competent for the Legislature to pass registry acts to regulate future conveyances, with penalties to enforce their observance, because these acts become a part of the future contract, and by the very terms of that contract, the purchaser is bound to record his-deed.
It is insisted, that there is “ no difference in principle between this and limitation laws, or acts abolishing imprisonment for debt, or revenue acts.”
I readily concede, that there is no difference in principle between this case and the reasons usually given for sustaining acts abolishing imprisonment for prior debts. But, I confess, the reasons given do not seem satisfactory. Conceding, that under the law existing when the contract was made, the creditor, by virtue of the contract, had his remedy against both the person
But, with all due deference to so many high authorities, I am compelled to place those decisions upon other grounds. I hold that a man under our constitutional system, can only forfeit his liberty by the commission of crimes against his country. The moment a State Constitution went into effect, that moment imprisonment for debt became illegal, unless there was some special provision allowing it. It is inconsistent with constitutional freedom, against public policy and public right, and no contract of the kind could be rightfully enforced in a Court of Justice. The State and the United States have an interest in the freedom of every citizen j and a man can no more make a valid contract for his incarceration in a prison, any more than he can to cut off his right arm, or mutilate his person in any way. He cannot, by contract, oblige himself to deprive his country of his-services.And as to the right of the Legislature to impose a tax upon property, exempt from taxation under the Mexican law, conceding there was such exemption, there can be no question. But this right exists by an express provision of the Constitution, which says, “ all property in this State shall be taxed in proportion to its value." Taxation must be uniform throughout the State. I readily concede, that had the Constitution conferred the power upon the Legislature to impair the obligation of past contracts, then there could have been no question as to the constitutionality of the Registry Act, even giving it the construction contended for. And the power of the State to impair the obligation of her own contracts, may be different from the power of the Legislature to pass an act impairing the obligation of contracts existing between individuals.
It is also contended that the right of the Legislature to pass statutes of limitation in reference to prior contracts must rest upon the same principle. There is, however, some difference in the two cases. Statutes of limitation impose no new burdens upon parties. These statutes only say that if you intend to sue at all, you must bring your suit within a limited time, for it is as easy to sue at one time as at another, and in the form of a judgment the obligation of your contract continues beyond the limitation set for bringing the action. But conceding that the principle is the same, should it be extended to other cases ? This Court has decided that the restrictive provision of the Constitution, that every law shall embrace but one object, was only directory, yet this Court has, by subsequent decisions, shown a manifest disinclination to extend this principle of construction to other cases.
In the case from 3 Peters, 289, Justice Baldwin, in delivering the opinion of the Court, expressed no doubt of the power of the Legislature of a State to pass acts affecting past conveyances. This is certainly a very high authority, although the question was not raised in that case, so far as I understand it. I think, in the case of Varic-k v. Briggs, it must be conceded that if the
So far as my researches have gone, and so far as the citation of authorities by the counsel in this case goes, there is no adjudged case, where the Supreme Court of a single State has ever decided that a party, holding a deed not subject to a registry system when made, ever forfeited his land by the failure to record his deed under the provisions of a retrospective act. As we have already seen, the point has come up under the general words of statutes, embracing all past deeds, yet the injustice was considered so great, that the Courts would not presume that the Legislature, in the language of Chancellor Walworth, “intended to violate a settled principle of natural justice, or destroy a vested title to property.”
But upon one point they all seem to be agreed, that such an act may be unconstitutional. This is shown from the language of Justice Baldwin, as quoted in the opinion of my associates. And Chancellor Walworth held, that a retrospective act, requiring a last deed to be recorded, would be unconstitutional. In all the acts requiring prior deeds to be recorded, there was a definite and reasonable time given. Rone of them embodied the harsh provisions that our statute is construed to contain. Row, had any of these learned judges been called upon to sustain such provisions as our Registry Act must contain, if the penal provisions of the twenty-sixth section apply at all to prior deeds, it is conceived they never would have sanctioned them, much less would they have given the act such a harsh construction by mere implication.
It is very true, as my associates assume, that the decision of this Court, in the case of Call v. Hastings, has been since considered the law of such cases. To overrule that decision, would affect titles acquired under it; but it is equally true, as I conceive, that it would also restore rights divested by that decision, and vindicate the justice of the Legislature, and the integrity of the Constitution. A former decision of this Court should not be overruled, except in a clear case; but when great injustice has been done by such a decision, and a violation of the Constitution sustained, it should be overruled. Our State is yet very young, and now is the proper time to lay deep the foundations for our future judicial edifice.
And I confess I cannot see how the unity and design of our registry system can be seriously affected by the construction of the Registry Act which I have given it. The parties claiming under these prior conveyances, were bound to keep possession of the property; and by the decisions of the English Courts, and of nearly all the Courts of the several States, this possession was
But, conceding all that has been assumed, I think the judgment of the Court below should be affirmed, upon the ground that a parol sale of land, accompanied by possession, which has been subsequently continued, is good under the law then existing. And admitting the defendants’ claim under the written conveyance, that circumstance, in my view, does not place the plaintiffs in any better condition.