83 Ky. 198 | Ky. Ct. App. | 1885
Lead Opinion
delivered the opinion oe the court.
In tMs action to settle the estate oí Nathan Law
The judgment did not direct that it be sold subject to an equity of redemption; it is silent upon, this point; and the commissioner, after having it properly appraised, sold it on July 19, 1880, the appellants becoming the purchasers at less than the-indebtedness, and also at less than two-thirds of the-appraised value. The sale was confirmed in October, 1880, but no deed has ever been made to them.
In May, 1881, another judgment was rendered, directing the sale of the equity of redemption; and under this judgment, to which the appellants objected, it was sold, and purchased by other parties.
The sale having been reported to the court, it was. confirmed over the exceptions filed by the appellants, who objected to it and the decree under which it was made, upon the ground that the act supra was. unconstitutional, so far as it, by its terms, was made-applicable to debts created prior to its passage.
In the case of Collins v. Collins, 79 Ky., 88, this identical question arose, but between the debtor- and his creditor; and it was held that the act was-unconstitutional so far as it related to debts created prior to its passage.
The opinion was based upon the fact that it was.
In this instance, however, neither the creditor nor-the debtor is complaining. The sale of the equity of redemption benefited both, and aided to pay the-indebtedness of an insolvent estate. The appellants purchased when they were bound to take notice of’ the law in question, and then, for the first time, acquired .any right to the land or interest in the matter. The obligation of no contract was impaired, so-far as they are concerned, which existed when the-Legislature enacted the law. It is true that the law-existing when a contract is made enters into it as-an integral part of it; but this is available only to-the parties to it, or those who become interested in the enforcement of the obligation arising out of it. The appellants were not parties to, nor had they any interest in, the indebtedness, which was created prior to the passage of the act, and which was enacted prior to their contract of purchase.
They are, therefore, not in a position to complain. The owner of a particular estate could as well be-heard to complain that an act of the Legislature is. unconstitutional, because it divests -the remainder-man of his right.
It is also urged that the judgment ordering the sale of the equity of redemption must be reversed "because it does not describe the land.
•It' is true that a decree directing the sale of land •should so describe it as to enable the commissioner to act without reference to any other paper or pleading in the case. In this instance the commissioner’s ■report of the assets of the estate, and also the first judgment of sale, specifically describe the land; but the judgment ordering the sale of the equity of redemption simply says: “This court’s master commissioner is hereby directed to make sale of the redemption in and to said land, same being described by metes and bounds in said former order, do which said court is referred for boundaries.”
It had already given the date of said former judg
Judgment affirmed.
Rehearing
delivered the response of the court to petition for rehearing.
After a careful consideration of the petition for a rehearing and an examination of authorities, we .think the opinion heretofore delivered is correct, both upon the merits and the law of this case.
The commissioner had the land appraised prior to the sale. This was certainly done in view of its redemption. It is to be presumed that the appellants knew that it had been done, and had notice of the record in his hands when the sale was made. They have said nothing to the contrary. The report of the sale stated that the land had been appraised before it was made, and the appraisement was returned with it.
Under these circumstances, it may fairly be presumed that the appellants, who purchased the property for less than two-thirds of its value, and who 'will, in any event, get back their money, bought it subject to a right of redemption. If they did not, it is singular that they have not said so.
The alarm of counsel at the opinion arises from a misapprehension of it. It is erroneously assumed
The word “voidable” was doubtless used by the-distinguished judge in the sense that the effect of an unconstitutional act may be avoided, by reason of its being void, by one who has a right to question it, the burden being upon him to show its unconstitutionality. He may have placed himself in such a position that he has no right to say that-the act is invalid, or to ask the interposition of a court for this purpose. For instance, if it unconstitutionally encroaches upon some right belonging to-him, but he procured or consented to its passage.. An examination of the entire case supports this; view of its meaning; and the view of Judge Cooley,, as given in his own language, is: “The statute is; assumed to be valid until.some one complains whose; rights it invades.”
It is urged by counsel that the word “unconstitutional” is the legal synonym of “void;” that a legislative act is either valid or void, and can not be voidable; that if void, it is so db initio, and as to .strangers as well as' interested parties, and for all purposes' and under all circumstances; that ho one •can gain or lose a right by it, nor is any one bound .by it, because the Legislature had nó power to pass it, and it has no legal effect. Without dissenting from these views, or being understood as fully ¡adopting them in the broad sense in which they .are stated, we will state more fully the ground for ¡an affirmance in this case.
The act of April 9, 1878, was in the case of Collins v. Collins, 79 Ky., 88, where the question arose between the debtor and the creditor, or the parties to the original contract, held to be unconstitutional •so far as it gave the debtor a right of redemption .as to sales of his land made after its passage for debts created prior thereto, upon the sole ground that it impaired the obligation of the contract. The ■ entire right of the appellants arises out of their contract of purchase, made subsequent to the passage of the act in question, and not out of the contract made when the debt for which the land was- sold was created. They were not parties to the latter, nor interested in the enforcement of the obligation
Strange as it may now seem, it was for a long time doubted whether the courts of this country had the power to declare an act of a Legislature unconstitutional; and at least two examples can be-found in our judicial history where judges have been impeached for so doing. It is a delicate and important duty, but a necessary one, because, as the Constitution is the fundamental law, it must be determined whether legislative action is in conformity to it. It should be performed, however, with the utmost caution and deliberation, and with a proper respect for the law-making power. Its action should not be held invalid unless it is so beyond reasonable doubt; and it is then so done, not because of judicial supremacy over a co-ordinate branch of the government, but because the law must be declared and the fundamental law maintained.
It results naturally from these considerations, that a court will not listen to an objection to the consti.tutionality of an act, if it comes from one who is not interested or who has no right to make it; that it will not even pass upon such a question, unless it is the lis mota, and necessary to its decision, and will not go out of its way to find such a question.
It was said in the case of Jones, &c., v. Black, &c., 48 Ala., 540: “Nor will a court listen to an objection made to the constitutionality of an act of the Legislature by a party whose rights it does . not specially affect. An act of the Legislature will
To the same effect are the cases of Williamson v. Carlton, 51 Me., 449; Dejarnette v. Haynes, 23 Miss., 600; and Turnpike Corp. v. County of Norfolk, &c., 6 Allen, 353.
The claim of the appellants is based alone upon a contract of purchase made subsequent to April 9,. 1878, and when the act in question was in force. There is no such connection between their contract and the one made when the debt was created, as to give them any rights under the latter ; and they can not be heard to say that the law is unconstitutional because it impairs the obligation of a contract to which they were not parties, and the obligation of which they were in no way or to any extent entitled, to enforce.
The petition for a rehearing is overruled.