The weekly pioneer and Democrat. [volume] (Saint Paul, Minn. Territory) 1855-1865, 1861-02-15
AN IMPORTANT LEGAL DECISION.
THE THREE YEARS REDEMPTION LAW sUs.
TANNED BY THE SUPREME COURT.
OPINION OF CHIEF JUSTICE EMMETT.

OflNlON Of CdlEf JUSTICE EMMETT.
MARIA T. Hayward, Executrix, &C., Plaintiff
in error Us. HENRY B. JUDD, Defendant in
error.
In November, A. D. 1865. James F. Hayward
and wife gave mortgage on certain real estate
in the county Of Ramsey, to Henly b. Judd, to
secure the payment of 5000 and interest.
This mortgage contained power authorizing
the mortgage, in case of default, to sell the
mortgaged property, at public sale, accord
ing to the Statute in such case made and pro.
vided," and apply the proceeds in discharge of
the debt thus secured. In August, A. D. 1860,
default having been made, the mortgage fore
closed by advertisement in pursuance of the
power, and became the purchaser at the sale.
In September following, he formally demanded
possession of the premises purchased, and be-
ing refused commenced this action, before
Justice of the Peace of the proper county, to
recover possession. The action is brought
against the executrix, Of the m0rtgagOr, who
was then in possession. The complaint sets up
all the facts in detail. The defendant below
demurred, on the ground that the facts stated
did not constitute cause of action. The JUS
tice OveIuled the demurrer, and gave the plain
tiff Judgment of restitution. The District Court
upon certiOrari affirmed this judgment, and the
defendant thereupon sued out of this Court
writ of error.
No objection is made to the regularity of the
Justice jurisdiction, and the only question
really material to the decision of this case. is
as to which party was entitled to the posses.
sion at the time the action was commenced.
By the law of July 70, 1858, in force at the
time this mortgage was executed, the purchas
er, upon sale OF mortgaged property by order
of the Court, or in pursuance of a power given
for that purpose, took the property subject
to the right OF the mortgagOr, or other redemp-
toner, to redeem the same at any time within
one year, Cor such other time as may be pre-
scribed by law by repaying the purchase
money with interest, at the rate OF twelve per
cent per annum; but the mortgagor was not
entitled to the possession during The time al
lowed for redemption, except upon the cOndi-
tion of paying this interest.
After the mortgage was given, but before the
mortgage attempted to execute the power of
sale contained therein. the Leg stature, by an
act approved March 10, 1860, amended the law
Of July 70, 1858, by changing The time of re-
demptiOn from one year to three years, and re-
duclng the rate OF interest from twelve per
cent. to seven per cent. per annum. The sec.
Ond section OF the law of 1858 was also so
amended as to give to the mOrtgagOr, or his
successor in interest, the right to remain in
possession during the time of redemption, by
paying at the end of each year interest on the
purchase money at the rate of seven per cent.
per annum, and all taxes which may then be
due upon the properly, with provision that if
the interest and taxes are not so paid the right
so to retain possession longer shall be forfeited
In the case of Bassett VS.. Stone, decided at
the July term, 1860, but not yet reported, this
Court held that the payment of interest prOvi
ded for by the act of July 20, 1858, must be
made in advance to entitle the mOrtgagor to
remain in possession, and that the terms of
that act applied to a. mortgage made prior to
its passage, although at the time the mortgage
in that ase was executed the mortgagOr, after
a sale by order of the Court, would have had
the right to redeem by paying the necessary
sum with interest at ten per cent. only per an
mum, and might have retained possession du.
ring the time allowed for redemption without
paying the interest in advance
70 regulate the terms upon which possession
may be held, during the time for redeeming,
does not, in our opinion, interfere either with
the obligation of the mortgage contract, or
with the nature of the estate authorized to be
sold under power to sell, where the sale can
only be made subject to the right to redeem;
and if, as we held in the case of Bassett VS..
Stone, before referred to, the Legislature may
make the terms more OnerOus to the mOrtga-
gor than they were at the time he executed the
mortgage, certainly the purchaser should not
be exempted from the application of the same
rule where the change made is unfav0rable to
him. His rights depend wholly on his contract
of purchase, and it is difficult to see why he
should not be governed, at least in this respect,
by the law in force at the time his contract is
made. Nor can we think it makes any differ.
ence whether the purchaser be the mortgage
or creditor or an entire stranger.
We think the decision in Bassett vs.. Stone
dispOses of this case, and that it could make no
difference in the decision, whether the LegSla-
ture could extend the time of redemption and
reduce the rate OF interest so DIS to affect past
contracts or not. We may for the purposes of
this case strike out the first section of the act
of March 10, 1860, and yet, as the second sec
ton, which relates merely to the terms upon
which the possession may be held while the
title under the purchase is maturing, would
still remain, the mOrtgagOr would have the
right to remain in possession one year without
paying the interest in advance, whether the
time for redemption was according to the old
law or the new.
The second section certainly does not affect
the contract, and can hardly be said to affect
the remedy, for it merely regulates the rela-
tions between the mOltgagor or debtor and the
purchaser after the contract has been carried
into effect, according to the course of judicial
proceedings, or after the power of sale has been
eXcised according to the Statute.
We are therefore OF the opinion that this &C.
ton was premature, and that the judgement of
the District Court affirming the JUDGMENT of the
Justice of the Peace should be reversed.
This case was not argued orally, and from
the statements made at the time cOunsels sub
mtted their briefs, we were led to believe that
the main question involved was the constitu-
tionality of the redemption law, SO called. of
Mafcn III, lobV, III It's appHcaIlOn 10 d SAFE maze
upon mortgage given previous to the passage
of the law. We have seen, however, that the
case is necessarily disposed of without reaching
that question. Yet as the question is one Of
great public interest, and has been deliberately
argued in this and the case of Dana ct al. vs..
FarringtOn heard at this term, but which was
decided on other grounds, we deem it neces-
sary after q careful examination OF the authori.
ties to state the general conclusions to which
we have arrived, but without entering at
length into the reasons which led to them.
We are fully aware that the weight of a de-
cision as authority is sometimes impaired by de.
termining questions not necessary to the decis-
ion of the case, and that the positive authority
of any decision is coeXtensive only with facts
upon which it is founded, Yet as We have au-
thority to decide any question fairly submitted,
and it is of vital importance to the people of
this State that our views on this question should
be known, we shall not hesitate to give them.
And we have the less hesitation, in view of the
fact that the court in the cases of Bronson VS..
Kinzie IL How. 3ll]. and McCraken We. Hey
ward r. How. COS, cited as leading cases on the
question:, in like manner gave their views, not
withstanding it was not necessary to the decis-
ion of the cases before them.
10 already said hot Wo