43 P. 677 | Idaho | 1896
(After Stating the Facts.) — The only question presented to this court is, Is the assignee or purchaser entitled to his deed at the end of six months from the date of sale, or must the mortgagor be allowed one year in which to redeem, under the amendment to section 4492 of the Session Laws of 1895, page 34, approved March 5, 1895. By this amendment to section 4492 the judgment debtor or redemptioner is given one year from the date of sale within which to redeem real estate sold under execution 'or decree of foreclosure. Under the law as it existed prior to this amendment, section 4492 gave the judgment debtor only six months within which to redeem such property. It is claimed by the respondent that the law referred to above does not apply to mortgages entered into before its passage, and that in this case the mortgagor has but six months in which to redeem from a sale under a decree, and that therefore he was entitled to his deed at the time the demand was made, to wit, on the thirtieth day of September, 1895. This amendment to the section not only affected the remedy given to the mortgagee, inasmuch as it prevents him from getting the ownership and possession of the mortgaged property as soon as he otherwise would by the law which was in force at the time the contract was made; it also gives the mortgagor an equitable estate in the land which, before the passage of this act, he did not have. In Bronson v. Kinzie, 1 How. 320, the supreme court of the United States, in a similar case, in speaking of the laws of Illinois passed after the mortgage in that case was given, says: “As concerns the law of February 19, 1841, it appears to the court not to act merely on the remedy, but directly upon the contract itself, and to ingraft upon it 'new ■conditions injurious and unjust to the mortgagee.”
It declares that, although the mortgaged premises should be sold under the decree of the court of chancery, yet that the