23 Iowa 515 | Iowa | 1867
Second. If it does apply, then, is it in conflict with the Constitution, as imparing the obligation of contracts ?
The material parts of the act under consideration are these: That the individual property of every volunteer soldier from this State, not above the rank of captain, “ shall be and is hereby declared exempt during the term lie shall be in said service and two months thereafter, from levy and sale under or by virtue of any deed of trust or mortgage of am/y description, or under or by virtue of any judgment or decree rendered or hereafter to be rend
Other' sections provide that the aet shall take effect from and after its publication in certain newspapers, and that the secretary of State shall immediately thereafter send a newspaper or printed slip containing it, to every sheriff in the State.
Plaintiff, by his petition, states the requisite facts as to service, rank, and the like, to entitle him to the benefits of this statute; and if it applies to sales of this character under deeds of trust made when this one was, then, assuming the validity of the legislation, he was entitled to the relief asked.
For reasons which we proceed to briefly state, our conclusion is, that it was not intended to include such sales, and that the demurrer was therefore properly sustained.
In March, I860 (Laws of 1860, ch. 79; Eev. § 3673), it was declared, that no deed of trust or mortgage, with power of sale, on real estate, made after the 1st day of April, 1861, for the security of the payment of money, should be foreclosed in any other manner than by proceedings in the District, State or Federal Courts. And this act was in force when the one under consideration was passed.
Now our first argument is, that the act of 1862, so far as it relates to trust-deeds, contemplated those made after
But the language of the act, when carefully examined, is in accord with this conclusion. We direct attention to the words “levy and sale” not levy or sale. Then to “duly levied on and sold” “ officer selling” “proceedings.” “and the levy discharged;” also, the direction as to costs where the proceedings are in the District Gourt and in the justice’s count, and still further to the duty of the secretary of State to furnish the law immediately to every sheriff in the State, and of the effect thereof when the sale took place before the officer had knowledge of the passage of the act. Now it seems to us, in view of all this language, that the legislature had in view ju lieial sales, or sales by officers under process issued to them upon judgments of foreclosure and the' like: If not so, then very much of this language is without weight or meaning. For instance, why notify sheriffs thus speedily- and in this unusual manner, and take no steps to give the law greater publicity in the several counties for the information of trustees and the public in each locality. Then
Now, when it is remembered that the legislature had, by a prior enactment, impliedly, at least, recognized the necessity of limiting its action to instruments of this nature subsequently executed, it is hardly fair to conclude that it has intended to apply this statute to dll deeds and mortgages. For while in the one case they refrain from requiring all such contracts to be thus foreclosed, in the other, according to appellant’s theory, they have suspended the power to sell upon any of them during the time of the trustor’s service and for two months thereafter. To require the party to come into court, would scarcely be regarded as impairing the obligation of his contract so much as to suspend absolutely his right to sell the land two to three years beyond the time fixed in the contract.
In any view of the subject, therefore, we feel constrained to hold with the court below that the act of 1862 was not intended to apply to trust-deeds made prior to April, 1861, and which by the law could be foreclosed without proceedings in court.
Affirmed.