State v. Bermudez

| La. | Jun 15, 1838

Bullard, J.,

delivered the opinion of the- court.

To a rule taken upon the judge of probates for the parish of Orleans,, to show cause why a mandamus should not issue, commanding him to proceed and adjudicate upon a monition issued under the act of 1834, entitled “An act for the further assurance of titles to purchasers at judicial sales,” the judge shows for cause, in the words of this court, in the case of Donaldson vs. Winters, to wit: “it is a so.und principle of construction never to consider laws as applying to cases which arose previous to their passage, unless the legislature declared such to be their intention.” 1 Louisiana Reports, 137.

From this answer, we infer, that the judge considered the act above referred to, as inapplicable to any case of judicial sale which took place before its passage., Such being his opinion, if he had dismissed the motion the party complaining might have had his remedy by appeal. But as such appeal would have beea necessarily exparte, the question may as properly be examined in the present form.

The legislature has no right perhaps, to add to the obligations or responsibilities •which floNy from, a contract at the time it is made, or to abridge any of the rights which it conferred. So, acquired rights, and existing contracts cannot be affected by subsequent legislation 5 but in relation to remedies, forms of proceeding and limitation of actions, a different principle applies, and the legislature may modify them.

The general principle, as quoted by the judge, is undoubtedly a sound one; and in the case in which this court applied, it cannot be disputed; and particularly, as illustrated by a subsequent part of the same opinion. The question was, in that case, as to the liability of the party evicted to restore fruits : he had purchased under the regime of the old code, and the law had in the mean time been modified by the amendments of that code. The court says, “ They (the ' legislature) have no right, perhaps, to add to the obligations or responsibility, which flowed from the contract at the time the defendant made it, or abridge any of the rights which it conferred.”

No axiom indeed, is more clear, than that acquired rights and existing compacts cannot be affected by subsequent législation. But with regard to remedies, forms of proceedings, and limitation of actions, the same principle does not necessarily apply. Prescriptions may be shortened even in relation to actions, the right to which has already arisen, and we do not doubt that more speedy and summary modes of proceeding may be constitutionally established.

The act of 1S34, is a remedial statute. The evil intended to be remedied, was that mass of litigation growing out of alleged informalities and nullities of judicial sales, which kept purchasers in the best faith, in constant dread of being hairassed and disturbed, in proportion as the property acquired became more valuable, and the evidence of a strict compliance with the forms of law, more difficult to obtain. It gives to purchasers a right by public monitions, to provoke an inquiry into the regularity of proceedings, which led to the alienation in question, or accords him an action in the nature of a jactitation of title against all persons, whose rights have been affected by the sale, before the same court under whose authority it was made. The judgment to be pronounced, affects no rights, except such as grew out of irregularities and nullities in the original proceeding ; the purchaser acquires no new title, no new right, but only an exemption from future litigation on account of such informa-Lities, after affording all parties interested an opportunity in a summary manner to contest the same matters which might afterwards become the subject of a suit; and the statute myes to the judgment of homologation to be pronounced on ° ° ® . the monition, the form of the thing adjudged, only in relation to such nullities and informalities. It is true, the act not expressly extend to sales which had taken place r j j # before its passage, but it gives to all purchasers at judicial salés, a right to apply for a monition, (without distinction,) an(^ giving it effect as a remedy in relation to a sale, which had already taken place, we do not think any fundamental principle is violated, any more than applying a new ^aw °f prescription to existing causes of action.

. The monition law ot 1834, is a i*emedial statute, intended to pre-litigation^grow-mg out óf gea míormalities and nullities which Cgivesleto at^judicial1 sales the right to in-sions, andPitap-sales made^before as since its passage.

_4. fair opportunity is afforded to all persons interested to ,, 11, _ . . , . . •, come forward, and make opposition; the monition stands in lieu of a citation, and a publication of the monition is a constructive notice. In our opinion, the remedy afforded by the statute, was intended to be co-extensive with the evil, and to afford the means of drying up, in a great measure, a fruitful source of litigation.

It is, therefore, ordered, adjudged.and decreed, that the rule be made absolute, and that the judge of the Court of Probates proceed in the premises according to law.