Willard v. Longstreet

2 Doug. 172 | Mich. | 1845

Goodwin, J.,

delivered the opinion of the Court.

The main question arising upon the case, and presented for our opinion and decision, is, whether the proceedings of the sheriff in selling the property were void, and the defendant, consequently, relieved from the penalty provided for not giving the notice required by the statute. It is insisted that the proceedings were invalid in consequence of the acts of 1841, relative to sales upon executions, being, as alleged, unconstitutional and void.

It is to be observed that the acts of 1841 do not repeal the provisions of the Revised Statutes of 1838, in regard to the advertisement and sale, but are merely amendatory of them ; providing for an appraisement of the property, and inhibiting any sale for less than two thirds of the appraised value. These several statutes are in pari materia, and to be construed together. The acts of 1841 are not absolutely and entirely null and void. So far as they conflict with the clause of the constitution of the United States, inhibiting State Legislatures from passing laws impairing the obligation of contracts, they are invalid and inoperative.

In the case of McCracken v. Hayward, 2 Howard, 608, and Bronson v. Kinzie, 1 Howard, 311, it was held that, in respect to previous contracts, they are invalid, inasmuch as they deprive the creditor of the remedy, for violation of the contract, which existed when the contract was entered into; and of the rights possessed under the then existing law. By the provision of the constitution, as interpreted by those decisions, the plaintiffs in the execution might have insisted upon an absolute sale of the property seized upon the execution, without regard to the acts of 1841, or any appraisement under them. In this case, it appears that an appraisement was had, and the plaintiffs became the purchasers, ata sum exceeding two thirds of the appraised value of the premises. The effect is as if there had been no appraisement, and they having become the purchasers, can make no complaint. They, in fact, directed the proceedings. If there had been no sale, or bid for two thirds the amount at which the premises were valued, they might have insisted that the property should be sold absolutely, to the highest bidder, irrespective of the appraisement; and if the sheriff had refused so to sell, have applied to the Court for an order upon him to do so,, as was done in the case of McCracken v. Hayward. But, having bid off the property, their rights have not been impaired by the appraisement, nor is the title affected by it.

This view of the principal question is an answer to the two first and fourth questions presented to us in the case, in favor of the plaintiff; and renders it unnecessary to decide the third. Upon that, however, which is, whether, to subject the sheriff to the penalty, it is necessary that the title should pass by the sale, I would add that it seems to me very obvious that if the sale were void, so that no title could pass by it, it was the same as if there were no sale, and no penalty could attach. It should be remarked, however, that the questions presented in respect to the title, only "relate to it so far as it may be affected by the appraisal, and the acts under which it was made ; and to them our answer is confined. The first and fourth questions proposed to us, then, should be answered in the negative, and the second and third, in the affirmative; and it should be so certified to the Circuit Court for the county of Kalamazoo.

Ordered certified accordingly.