State v. Hurlburt

182 P. 169 | Or. | 1919

McBRIDE, C. J.

It requires no argument to demonstrate the proposition that by virtue of the conveyances from Eva Duggan to Van Allen, and from Van Allen to plaintiff, it succeeded to all the rights of Mrs. Rosin, the mortgágee and purchaser at the foreclosure sale, and that if the statute of 1917, extending the time for redemption, would be void as to her it would also be void as to plaintiff.

1. It is settled by the case of Barnitz v. Beverly, 163 U. S. 118 (41 L. Ed. 93, 16 Sup. Ct. 1042), that, to use the language of the syllabus,—

“A state statute, which authorizes the redemption of property sold upon foreclosure of a mortgage, where no right of redemption- previously existed, or which extends the period of redemption beyond the time formerly allowed, cannot constitutionally apply to a sale under a mortgage executed before its passage. ’ ’

2. Prior to the passage of the amendment of 1917 the mortgagor, if he had not parted with his title to the property, had one year within which to redeem. This was the situation when the mortgage in question was executed. By the terms of the act of 1917 it was provided that, upon the happening of a certain contingency, namely: The failure of the property to bring the amount of the mortgage when sold, the judgment debtor should be permitted to redeem and he should, after the expiration of one year, have ten days’ additional time within which to make such redemption. This constitutes a clear extension of the time for redemption from one year to one year and ten days, and also gives the mortgagor a right of redemption where no such right existed before. In our judgment, such extension cannot apply to a mortgage executed before the last named statute was enacted. ' .

The case of Hooker v. Burr, 194 U. S. 415 (48 L. Ed. 1046, 24 Sup. Ct. Rep. 706), is relied upon by counsel for defendant as modifying, in some degree, the rule laid down in Barnitz v. Beverly, 163 U. S. 118 (41 L. Ed. 93, 16 Sup. Ct. Rep. 1042), but we do not see that it in any way sustains defendant’s contention here. In that case Spencer and wife mortgaged property to Swiggert, who assigned the mortgage to Bishop, who brought suit thereon and caused Burr, the sheriff, to sell the mortgaged premises. Hooker, who had no connection with the mortgage or any lien upon the land, purchased the property at the sale for a sum greatly in excess of the amount of the mortgage. One Rhodes, who was a judgment creditor of Spencer, the mortgagor,' assumed to redeem by paying to the sheriff the amount of the purchase price paid by Hooker, together with one per cent per month interest, as required by the statute thén in force. This the sheriff accepted, but Hooker refused to receive it, and threafter Burr executed a deed to Rhodes. Hooker brought a suit to set this deed aside for the alleged reason that when the mortgage was executed the law of California provided that a judgment debtor, or redemptioner, might redeem from the purchaser at a foreclosure sale at any time within six months after the sale, by paying the purchase money and two per cent interest; and that in the case then at bar the redemptioner had allowed more than six months to elapse and had paid the purchase money only and one per cent interest. It appeared that after the execution of the mortgage but before the foreclosure and sale, the law had been amended so as to permit a redemption within one year and reducing the interest from two per cent to one per cent. Hooker contended that these provisions were void as to him, because they impaired the obligation of a contract. It was held in substance that Hooker, being an independent purchaser, was not in privity with the original mortgagee; that as the original mortgage debt had been paid in full, from the sale of the property, and the mortgagee had not been a purchaser at the sale, he was not affected by a technical violation of a contract, which violation conld not possibly injure him, and that a discussion of whether the contract — as between him and the mortgagor — had been impaired would be purely academic. Concluding this branch of the discussion, the court said:

■ “The question of the impairment of the mortgage contract therefore, is not before us as between mortgagor and mortgagee.”

The court says further:

“We are of the opinion that, as to the plaintiff in error, an independent purchaser #t the foreclosure sale, having no connection whatever with the original contract between the mortgagor and mortgagee, his rights are to be determined by the law as it existed at the time he became a purchaser, unless upon action taken by the mortgagee the property had been sold under a decree providing that it should be sold without regard to the subsequent legislation which impaired his contract. The purchaser bought at the time when the law as altered was in operation, and, so far as he was concerned, it was a valid law; his contract was made under that law, and it is no business of his whether the original contract between the mortgagor and mortgagee was impaired or not by the subsequent legislation. He cannot be heard to contend that the original law applies to him, because a subsequent statute might be void as to some one else. The some one else might waive its illegality or consent to its enforcement, or the question might have no importance, because the property sold for enough to pay the debt, even though there was an abstract impairment of the obligation of his contract.

“The purchaser must found his rights upon the law as it existed when he purchased. An alteration after he had purchased, to his prejudice, would be a different thing: Cooley on Const. Limitations (4 ed.), 356. We agree that the law existing when a mortgage is made enters into and becomes a part of the contract, but that contract has nothing to do, so far as this question is concerned, with the contract of a purchaser at a foreclosure sale having no other connection with the mortgage than that of a purchaser at such sale. His rights regarding matters of redemption are to be determined as we have' stated.”

The sum of the whole opinion seems to be that as between the mortgagor or his assignee and the mortgagee, such mortgagee or his assignee has the right to insist upon redemption, according to the requirements of the statute in force at the time the mortgage was executed, but that an independent purchaser at the mortgage sale has no such privity with the contract between the mortgagor and mortgagee, as entitles him to insist on redemption in accordance with the law existing at the time of execution; but on the contrary, will take the property subject to the provisions of the law in force at the time of the sale.

3. The logic of the opinion seems, to the writer, to be questionable, but it is the decision of the highest court of the land upon a question arising under the Constitution of the United States, and this court must accept it.

The case at bar stands upon a different footing. Here the mortgagee was the purchaser at the foreclosure sale. The property did not bring the amount of the mortgage. On May 2, 1919, Mrs. Bosin conveyed to petitioner herein all her right, title and interest in the property which, in effect, conveyed all her rights arising under the certificate of sale executed to her when she purchased the property. Plaintiff was not an independent purchaser at the sale, but derived its right through Mrs. Bosin, the original mortgagee, and stood in her shoes. As Mrs. Bosin had a right to insist on redemption within a year from the confirmation of the sale, petitioner, as her successor, had the same right. The fact that Mrs. Eosin succeeded in collecting the deficiency due her from the mortgagor by subsequently levying upon and selling other property of the mortgagor, can make no difference in the result. By virtue of the law existing at the time of the execution of the mortgage, which law was just as much a part of the contract as if it had been written into it, Mrs. Eosin was entitled to receive a deed at the end of the one year from the confirmation of the sale, if a sale of the property should become' necessary. The law then specified no contingency under which this time could be extended. If it was competent for the legislature, after the mortgage had been executed, to extend the time for redemption ten days, there is no logical reason why it could not extend it for a year or even for a longer period.' The length of time which a purchaser at a foreclosure must wait after confirmation before he can secure a full and indefeasible title to the premises offered for sale, might and frequently would influence him in making his bid. The law of the contract gave the mortgagee the right to receive a deed for the premises at the end of one year from the confirmation of sale. The law of 1917 extended this time to one year and ten days if a certain contingency should happen. To this extent it impaired the contract and is therefore inapplicable.

4. Another question is raised in regard to the sufficiency of the decree to support a sale. It appears that the mortgage described the property as situated in “Blackistone Addition” to the City of Portland, while the complaint and decree describe it as situated in “Blackstone’s Addition.” It is admitted in the petition and writ that the property sold was the identical property mortgaged. The names “Blackistone” and “Blackstone” are so similar as to come fairly within the rule of idem soncms.

A judgment will be entered' directing the sheriff to execute a deed to the petitioner. Writ Allowed.