123 Mich. 56 | Mich. | 1900
This is an appeal of a second mortgagee in possession from a decree of foreclosure of a real-estate mortgage authorizing a sale one month after decree entered, and providing that there shall be no redemption from such sale. The appellant appeared in the court below, and asked that a decree he entered providing for redemption according to the terms of Act No. 200 of the Public Acts of 1899. The sole questions are on the constitutionality and applicability of that act. The mortgage foreclosed was made in February, 1897, the bill of complaint was filed February 5, 1898, and the decree was ■entered November 23, 1899. It is contended that the law, as amended, should not control the proceedings in this ease:,
First. Because, the mortgage having been executed before the passage of the amendment, which amendment, by its terms, materially changes the rights and remedies of the mortgagee, the act, as to such mortgage, would be unconstitutional, as impairing the obligation of contracts.
Second. Because, even if the act can be construed as affecting prior mortgages, it should not be construed to affect proceedings instituted before the act took effect, and the proceedings in this cause must, therefore, be governed by the old law.
Third. Because it is clear, by the reading of the amended law, that it was intended to apply only to foreclosure proceedings instituted in the future, and not to proceedings pending at the time the law went into effect.
It is said the statute in force at the execution of the mortgage must govern, and Act No. -200 of the Public Act of 1899, as applicable to such mortgage, is unconstitutional, as impairing the obligation of contracts; citing Stevens v. Brown, Walk. Ch. 41; Mundy v. Mon
2 How. Stat. § 6701, reads as follows:
“Whenever a bill shall be filed for the foreclosure or satisfaction of a mortgage, the court shall have power to decree a sale of the mortgaged premises, or such part thereof as may be sufficient to discharge the amount due on the mortgage, and the costs of suit; but the circuit judge shall not, by such decree, order any lands to be sold within one year after the filing of the bill of foreclosure.”
The amended section reads just the same as the.original section down to the words ‘ ‘ one year, ” which are stricken out, and the words “six months” are inserted in lieu thereof. Then comes a provision for the redemption of the land any time within six months after the sale. Is this such a change in the law as to impair the contract made between the mortgagor and the mortgagee, or does it simply relate to the remedy ? Prior to the passage of the law of 1843 (Act No. 62, Laws 1843) the title to the land was in the mortgagee. He was entitled to its possession, and to the. rents and profits accruing therefrom. The law of 1843 took from the mortgagee the right of possession, and did not allow him to bring ejectment until the expiration of the right of redemption after the foi’eclosure of the mortgage. Of course, this deprived him of the use of the premises, and of the rents and profits, to. which he was entitled prior to the passage of the law. The court, in Mundy v. Monroe, supra, and Blackwood v. Van Vleet, supra, very properly held that this deprived the mortgagee of a contract right, and impaired the obligation of a contract. The same reason applies in the case of Barnitz v. Beverly, 163 U. S. 118. Under the law of 1844 (Act No. 40, Laws 1844) the mortgagor had 'the legal right to remain in possession of the premises two years after the foreclosure sale. This law was changed so as to make the period of redemption run but one year. In Cargill v. Power, 1 Mich. 369, it was held this change
“It seems to be conceded by all who have written on this subject that, where the law sought to be invalidated affects the remedy only, and does not touch the right of the party secured by the contract, it is not repugnant to that provision of the Constitution which declares that no State shall pass any law impairing the obligation of contracts. ”
In the case of Sturges v. Crowninshield, 4 Wheat. 200, so often referred to upon questions of this kind, the late chief justice of the United States says:
“ The distinction between the obligation of a contract, and the remedy given by the legislature to enforce that obligation, has been taken at the bar, and exists in the nature of things. Without impairing the obligation of the contract, the remedy may certainly be modified, as the wisdom of the nation shall direct.”
In Tennessee v. Sneed, 96 U. S. 69, the rule is stated as follows:
“The case of Sturges v. Crowninshield, 4 Wheat. 122, is among the first of the class where the question arose upon the abolition of the right of imprisonment of the debtor as a means of compelling payment of his debt. Mason v. Haile, 12 Wheat. 370, was a case of the same class. Mr. Justice Thompson says: ‘Imprisonment of the debtor * * * may be allowed as a means of inducing hjm to perform his contract; but the State may refuse to inflict this punishment, * * * and leave the contract in full force. Imprisonment is no part of the contract, and simply to release the prisoner does not impair its obligation.’ On the general subject, and for numerous illustrations, reference is made to the following cases, which it is not necessary to examine in detail: Bronson v. Kinzie, 1 How. 311; Von Hoffman v. City
See, also, Connecticut Mut. Life Ins. Co. v. Cushman, 108 U. S. 51; Morley v. Railway Co., 146 U. S. 162; Von Baumbach v. Bade, 9 Wis. 559.
If we compare the law as amended with it as it was before the amendment occurred, we will find it does not change the time of possession either of the mortgagor or of the mortgagee. It changes the form of the decree. It shortens the time after the suit is brought when sale may be made, but it adds a period of redemption after the sale which did not exist before. We do not think it can be said that there is any such material change in the relation of the mortgagor to the mortgagee, or to the rights of each, as to amount to an impairment of the obligation of contracts.
Does the statute, as amended, apply to cases already begun ? They are not excepted from the terms of the act. When the amended section became operative, it took the place of the original section, and the provisions of the original section ceased to exist. This occurred before the decree was made. We think the terms of the act applied to this case, and that the decree for which the defendant prayed should have been entered.
The decree of the court below is reversed, and one will be entered here in accordance with this opinion. -
