Daily State sentinel. [volume] (Indianapolis, Ind.) 1861-1865, 1862-02-12
important Decision Redemption
Law of 1861.

Law of 1861.
Supreme Court November Term, 1861. 63d
Day, Feb 6, 1862. John 5. Scobey VS.. Israel T
Gibson. Appeal from the Decatur Circuit Court.
PERKINS, Justice.
The only question in this case is whether the
redemption law of le6l (acts of 1861 p. 49, is
to be held applicable TO sales OH judgments upon
contracts existing at and before its passage. The
act provides that in all eases of sales by the sher-
III, Ne, on execution. &c. after its passage, the
sheriff shall not give the purchaser deed tor and
possession Of the property sold, but only Il certi-
ficate emitting him TO Il deed and possession in
one year from the sale if the property is not re
deemed
In legal effect, what is the operation of this
statutey
1t is to prohibit for one year, the absolute sale
of property Tor the purpose of collecting a
debt due In place of such sale it authorizes the
sheriff make contract for the absolute sale of
the property after the lapse of one years time,
unless such contract shall be defeated by the per-
Torrance OF specified condition; namely, the
return of the purchase money paid, with interest,
by the expiration of said year; it authorizes, in
other words, the sheriff, in legal effect, to mort
gage the debtors land for one year. to any one
who will advance the amount required by law
upol its appraised value-the mortgage to be.
come absolute and free from equity of redemp.
ton at the end Of year, if the money advanced
is not refunded with interest.
What is the influence Of such statute upon
the collection of debts? Its tendency is to delay.
Ii embarasseS the collection, because it deprives
the creditor OF the right which the law at the
date OF his contract, gave him, OF selling the alb
s0ut" fee OF tiie debtors real estate.
And the question is. if held to operate upon
existing contracts will the act conflict with that
clause of section 10, art. of the Constitution of
the United States which declares that no State
shall pass any law mpairing the obligation of
cOntractsg What constitutes such law
a few years ago the Legislature passed law
forbdding the sheriff to sell the debtors proper
ty unless the half Of the appraised value was
bid for it. Before that time property had sold
for what it would bring The appraisement law
was held not to operate on existing contracts and
WHY Not because il forbade the sale of prop
erty for their enforcement; it did not do that; but
because it deprived the sheriff of the absolute
power sell the fee, all events; il lett him but
the conditional power to sell-the power of sell
ing if he could get certain price-nOt otherwise.
1t tended to embarrass, and thereby to prevent
the sale, and thus TO delay the collection of the
debt
So, too, awhile ago, additional stay of exc
cuti0n was given upon Judgements, by an act of
the Legislature. This act was held mOperatiVe
rs TO existing contracts, and WHY Not because
it cancelled obligations, but because il delayed
their collection by the process OF the law. This
was the natural, necessary and intended effect of
both OF the above mentioned statutes, and it is,
also. of the redemption law. Ii the decisions
upon the operation OF the first two named laws were
right and We are bound by them. then. beyond
doubt, the redemption law in question must be
held imperative upon existing contracts. See
the cases collected Ia Gavin & Hord 5 edition of
r. ). Vol. l. p. 10.
lt Il said that where a purchaser bids off the
property and paws the money under the present
LAW, he has nO right To object 20 the redemption
as he buys in face Of the law; but il Is a maxim
that g, cry man Is bound TO know the law and act
accordingly. Hence the man who buys does so
knowing that the law will not and eau not operate
to deprive him OF his deed and title, and he must
be taken 10 make his bid in the light Of aud in
tuenced 10, such know ledge. And farther the
law must be uniform IN It's operation, alike upon
all
Again, it i urged that the Legislature has a
right to change legal remedies that il is only the
obligation OF contracts that can not be impaired,
and it Is claimed the redemption law affects the
remedy only.
Ii Is freely admitted that the state, for con-
venience. may change legal remedies: may vary
the times OF holding Courts, shit jurisdiction
from one 10 another. change forms OF action. OF
pleadings ana OF process, &c; aud such egsla-
ton may, incidentally, delay somewhat, the col
lection ct given ueOt,, but such i the purpose
OF this legislation And while it, validity is ad-
mitted, il may also be asserted that the Legisia-
ture can not, under the guise OF legsElting upon
the remedy, Intentionally, IN effect. impair the
obligation o. contracts. and IL ElaY DE further
laid down that any legislation, proiessedy di-
recied 10 the remedy, which depriFes party of
substantially efficient THAI existing at
the making OF the contract. does impair the Oh
hgation OF the contract Ind Digest. . 27l
See - Ia tirantiy. Lessee rs. Ewing, ; How
t. ; 70I. Judge Catron. in delivering the opn
ion OF the Court sand:
This Court held in Bronson vs. kinzie,
How 3l9, that the right, anu remedy substal
tally in accordance with the right. were equally
parts of the contract. secured bv the laws OF the
State where il was made See aslo, Blackf
by Peele and DAVIS. q 22o. note. Also. cal
Req. l27; SID, 40l. Manning Mich Rep 369
Ii nav perhaps. be questioned whether the re
demptiou Law in question Is properly classed as
legislation touching the remedy IL does not op
crate upon terms of Court, upon pleading or prac-
tice in obtaining judgment, nor upon process upon
judgment But. however elias 'ed il restricts, cur
tails. the right OF the Judgment creditor in reia
ton to subiecting the property OF the debtor to
execution for the payment Of given debts. |,
may not diminish tie fund OF the debtor applca
bic 70 the payment Of his debts; nur did the up
prisment law. nor the stay law but it limits cur
tails. matrriail, emharr~-es the right of the creii