4 Minn. 298 | Minn. | 1860
By the Court. On the 5th day of February, 1857, the Defendant and wife gave a mortgage to the Plaintiff, on certain real property in Ramsey County, to secure the payment of $2000, in one year, with interest at the rate of two per cent, per month, until paid. On the 7th day of August, 1858, Defendant having failed to pay, the Plaintiff commenced an action in the District Court to foreclose the mortgage, and such proceedings were had therein, that the court, on the 5th day of May, 1859, ordered the mortgaged property, or so much thereof as might be sufficient, Jo be sold by the Sheriff to satisfy the amount due, giving to either party the right to purchase at the sale, and ordering that the Sheriff make a deed to the purchaser, and that, on the production of such deed, he be let into the possession; and, also, that the Defendant and wife, and all claiming through or under them, be barred of all equity of redemption. In pursuance of this order, the Sheriff, proceeding as upon oi’dinary execution, sold all of the mortgaged premises to the Plaintiff on the 15th day of July, 1859, and on the same day executed a deed to him of the property purchased, after the usual form of Sheriff’s deeds. After-wards, on the 30th day of July, 1859, the Plaintiff produced this deed to the Defendant, and demanded possession of the premises, but the Defendant refused to surrender the possession. It further appears that the Defendant and wife just
On tbe other band, tbe Plaintiff contends that tbe Statute of July 29, 1858, cannot be applied to this sale without impairing tbe obligation of tbe mortgage contract, wbicb was made prior to the passage of tbe law, and that in any event, tbe mortgagor could not retain possession by paying one year’s interest in advance.
In tbe case of Grimes vs. Bryne, 2 Minn. 89, where it was insisted that the exemption law of August 12, 1858, could not be applied to contracts made prior to its enactment without impairing tbe obligation of such contract, this Court held, that although tbe law exempted property not exempt from execution at tbe time tbe contract was made, yet it affected tbe
Let us, then, inquire whether, by the passage of the Act of July 29, 1858, the Legislature abused the power vested in it to control the remedy, and whether the Act can be applied to contracts made prior to its enactment, without a violation of the State or Federal Constitution. This inquiry involves an examination of the practice in our courts, and of the remedies in force at the time this mortgage was made.
For the first few years of our Territorial existence, our District Courts exercised their equity powers according to the usual chancery practice; and during that time the judicial remedy on mortgages was by bill in chancery for a strict foreclosure, or to have the property sold, and the proceeds applied in satisfaction of the mortgage. But even when a strict foreclosure was sought, the Statute expressly recognized the power of the court to order the mortgaged property to be sold.
The Legislature, however, by an Act, approved May 5,1853, abolished the Court of Chancery as a distinct tribunal, and also all distinctions then existing between the practice and proceedings at law and in equity, and expressly directed that all equity and chancery jurisdiction should thereafter be exercised, and that all suits, applications, and proceedings then enforced by chancery jurisdiction, including the foreclosure and satisfaction of mortgages, should be' commenced, prosecuted and conducted to a final decision and judgment, by the process, pleading, trial and proceedings prescribed in civil actions. This Act, though it took from the courts none of their equity powers, yet in effect repealed all Statutes relating to the mode of practice and proceedings in chancery, and prescribed but one form of action for the enforcement or protection of private rights, or the redress of private wrongs, whatever might be the nature of the action. The Statutes concerning civil actions, and regulating the practice and proceed
If, then, there be but one form of action, and the Statutes concerning civil actions apply as well to suits in equity as actions at law, is there any reasonable ground for distinguishing sales of real estate, made by order or judgment of the court upon proceedings for the foreclosure or satisfaction of mortgages from other sales upon execution ? Does not the same general law apply to all sales of real estate upon an execution against the property of a debtor? The sale is but the result of the judgment of the court in either instance. In the one case, there is a general judgment against the party enforced by an execution against his property generally, and directed to the Sheriff of the county. In the other, there is a judgment for the sale of particular property, in satisfaction of a debt, enforced by a special execution directed to the Sheriff or other person appointed by the court to execute it. Why, then, should the right of redemption attach to a sale upon a judgment in the one instance and not in the other ? Does the Statute make the distinction ? The Statute provides, that upon a sale of real property on execution, when the estate is less than a leasehold of two years unexpired term, the sale shall be absolute, but that in all other cases the property is sold subject to the redemption therein provided. R. S. Chap. 71, Sec. 112. And is not a sale of mortgaged premises under the judgment or order of the court a judicial sale ? The Act of May 5, 1853, expressly says, that proceedings for the foreclosure and satisfaction of mortgages are to be governed by the proceedings prescribed in civil actions. ■ Shall we, then, adopt all the provisions of the Statutes concerning civil actions and proceedings, and the rights
But it is said that sometimes, owing to the general scarcity of money, no one but the mortgagee .is likely to bid at the sale, and that he will have to bid all the property is worth, or it will be redeemed. "We regard this as an argument rather in favor of, than against the right of redemption, for, without a redemption, the mortgagee, in the instance suggested, might be able to obtain the property on his own terms, while, if the mortgagor has the right to redeem, the danger of sacrifice is not so imminent, and I can see no great injustice in a Statute which permits a redemption, upon the terms of repaying the purchase money, with interest at a rate equal to, or greater than the usual legal rate. Indeed, courts of equity have frequently interfered, when mortgages have been pressed in times of general embarrassment, and deferred the sale, or time of redemption until the difficulties were removed.
But, we will not discuss the policy of a statutory redemption. "We are satisfied that the Act of May 5,1853, places all judicial sales upon the same footing, whether the sale is upon a judgment in proceedings to foreclose or satisfy a mortgage, or an ordinary judgment for the recovery of money; and we consider the Act of July 29, 1858, so far as it gives a right to redeem from mortgage sales, as merely declaratory of the existence of that right.
Looking, then, to the law as it existed at the time the mortgage in this case was executed, we find that the sixty days redemption given by the general law of 1851, on all judicial sales, had been extended to. one year, by an amendment made in 1851. Sess. Laws of 1854, p. 103. The mortgagor, therefore, under this amendment, had the right to retain possession and redeem at any time within one year, upon repaying the purchase money with interest, at the rate of ten per cent, per annum. The Act of July 29,1858, however, changed the rate of interest to twelve per cent., and made its payment the condition upon which the mortgagor could retain possession. The constitutional objection, therefore, so earnestly insisted on by the Plaintiff, would not avail him in any event, for the time of redemption was not changed, and the alterations that are made are adverse to the ^Defendant,
The Supreme Court of the State of New York, in a well considered opinion, James vs. Stull, 9 Barb. 482, held that a Statute of that State authorizing sales of mortgaged premises, under the power of sale contained in a mortgage, upon a notice of t/wel/oe weeks, is not unconstitutional and void, so far as it operates upon mortgages in existence at the time of its passage, notwithstanding that previous to that Statute a notice of twenty-four weeks was necessary; and that the authority given to the mortgagee to sell according to law, should be construed to mean according to the law in force at the túrne such sale became neaessa/ry. See also Morse vs. Gould, 1 Kernan 281. In Butler vs. Palmer, 1 Mill, 324, the same court held that a Statute which operated to lessen the time of redemption was not un
Believing then, as we have before stated, that the legislature has control of the remedy, and may alter it in any manner, that does not impair the obligation of the contract, and being unable to discover in the act of July 29,1858, any abuse of this legislative discretion, we hold: That it is not a violation of the State or Federal Constitution, whether as applied to contracts made prior or subsequent to the time of its enactment: That the Defendant was bound, as the condition upon which he could retain possession, during the time of redemption, to pay
It is however urged by the Defendant that this action was improperly brought before a Justice of the Peace, because the Statute which confers jurisdiction on Justices of the Peace, in forcible entry or detainer, does not, in terms, include a case where a mortgagor holds over after a sale on foreclosure of a mortgage in chancery. Sec. 12, Chap. 87, Rev. Stat. 1851.
That Statute was passed while we yet had a separate chancery practice, and did not include cases of that kind, they being otherwise fully provided for by the 58th section of chapter 91 of the same act, which authorizes the court of chancery, on the coming in of the report of such a sale, to decree and compel the delivery of the possession of the premises to the purchaser, without calling upon a Justice of the Peace for assistance to enforce its decrees.
But, does the effect which we have given to the act of May 5th, 1853, obviate this objection? We think not. The sale in such a case, it is true, is a sale upon execution within the meaning of the forcible entry and detainer law, but, it will be found that by the terms of that law, an action cannot be commenced before a Justice of the Peace, after a sale upon execution, until after the expiration of the time for redemption; and, as the time for redemption in this case had not expired, the purchaser, although entitled to the possession, could not maintain this action before a Justice of the Peace.
I agree with the conclusion arrived at by the Chief Justice, as to the effect of the law of 1853, and the validity of the law of 1858, in its application to contracts made prior to its passage, but dissent from much of the reasoning of his Honor, embraced in the foregoing opinion.
It is quite clear to me that the Justice of the Peace had uo jurisdiction under the Statute to entertain and decide this case upon its merits. The mortgagor had the right to redeem the land under the act of July 29th, 1858, and until the time had expired within which this right could be exercised the Justice could not try tbe question of tbe right to tbe possession. Com. Stat. 651, Sec. 12. This point alone is entirely fatal to tbe whole case, and cuts oif tbe necessity of an investigation of tbe merits. After deciding that tbe Court below bad no jurisdiction of tbe subject matter of tbe action, anything that we should say upon the merits would be of no force or authority as a precedent for our future government; therefore while I fully concur in tbe conclusions arrived at by tbe Chief Justice in bis opinion as to tbe disposition to be made of tbe case, and all tbe reasoning that be brings to bear in support of such conclusions, I deem it advisable in order to prevent any future uncertainty, to say, that tbe reasoning of tbe Chief Justice in support of tbe power of tbe legislature to extend the time of tbe redemption on mortgage sales under pre-existing mortgages, should be confined exclusively to sales made by order of tbe courts in tbe exercise of their equitable powers, and not to such sales as may resijlt from tbe express contract of tbe parties.