Indiana State sentinel. (Indianapolis, Ind.) 1861-1865, 1862-02-17


PKRKlSs, Justice.
The only question in this case is whether the
redemption law Of 1861 facts of 1861 p. 79) il
to be held applicable to sales on judgments npOn
contracts existing at and before lis passage. The
act provides that in all cases Of sales by the sher
III, &c, execution. &c. after its passage. the
sheriff shall not give the purchaser aided fOr,and
possession of, the property sold, but only certi-
hcate emitting him TO a deed and possession in
one year from the sale il the property is not re-
deemed -tfF EtH.I
In legal effect, what is the operation of this
statuteI
1t is to prohibit for one year, thsebsolute sale
Of property for the purpose of collecting a
debt due. In place of such SALE il aufhorizes the
sheriff to 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,
upoa its appraised vaue-the mortgage TO be.
come absolute and free from equity of reiemp-
ton, at the end Of year, If the money advanced
is not refunded with interest
What is the influence of such a statute upon
the collection of debts? Its tendency is TO DELAY
1t embarasses the collection, because il deprives
the creditor of the right which the law, at the
date OF his contract, gave him, of selling the alb
solute fee of the debtors real estate
And the question is if held 10 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 impairing the obligation of
cOntracts1 What constitutes such lawl
few years ago the Legislature passed law
I fOrbidtiinp he sheriff 10 dahforss
ty unless the half of the appraised value was
bid for 1t. Before that time property had sold
/ for what il would bring. The appraisement law
was held not TO operate on existing contracts and
why? Not because it forbade the sale of prop
erty for their enforcement; did not do that but
/ because it deprived the sheriff Of the absolute
power to sell the fee at all events; il left him but
the conditional power to selI-the power of sell
ing if he could get a certain price-not otherwise
Ii tended to embarrass, and thereby to prevent.
the sale, and thus to delay the collection of the
debt.
So, too, awhile ago, an additional stay of exc.
cution was given upon judgements, by an act of
the Legislature. This act was held imperative
as TO existing contracts and whyI Not because
it cancelled obligations, but because it 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 il is,
also. of the redemption law. If 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 in Gavin & HOrd's edition of
r. S, Vol. /, p. 10
! 1t is said that where a purchaser bids off the
property and paws the money under the present
law, he has no right to object to the redemption,
as he buys in face of the law; but it is a maxim
| thaterery 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 be must
be taken TO make his bid in the light of, and in
huenced by such knowledge. And farther the
law must be uniform in It's operation alike upon all
Again, it is urged that the Legislature has a
right to change legal remedies; that it is only the
obligation of contracts that can not be impaired,
and it is claimed the redemption law affects the
remedy only.
1t is freely admitted that the State, for con-
venence, may change legal remedies may vary
the times of holding Courts, sniff jurisdiction
from one to another, change forms of action, Of
ton may, incidentally, delay somewhat, the col
lection of given debts but such is not the purpose
of this legislation. And while its validity is ad-
mitted, it may also be asserted that the Legisla-
ture can not, under the guise of legislating upon
the remedy, Intentionally, in effect, impair the
obligation of contracts; and it may be further
laid down that any legislation, professedly d.
rected to the remedy, which deprives party of
one substantially as efficient as that existing at
the making of the contract, does impair the OBJ
legation of the contract. Ind. Digest, p 27l,
Sec. S. In GRAVITY, Lessee Us. Ewing, 3 How
(U. s. 707, Judge Catron in delivering the opin-
ion of the Court, said
"This CceF. held in Bronson VS. Kinzie
How, 3l9, that the right, and remedy substan-
tally in accordance with the right, were equally
parts of the contract, secured by the laws of the
State where it was made" See aslo, / Blackf
by Peele and Davis, D 300 note. Also, cal
Rep, l27; sid, 40l, l Manning (Mich.) Rep 1862
1t may perhaps, be questioned whether the re-
demption law in question is properly classed as
| legislation touching the remedy. Ii does not op-
crate upon terms of Court, upon pleading or prac-
tiee in obtaining judgment, nor upon process upon
judgment But, however elias sed il restricts, cur
tails, the right of the judgment creditor in rela-
ton TO subjecting the property Of the debtor to
execution for the payment Of given debts. 1t
may not diminish the fund of the debtor appca-
bic 70 the payment of his debts; nor did the ap
praisment law nor the stay law but il limits cur
tails materially embarrasses the right Of thecredi-
tor in given cases, insubjecting the entire amount
of the debtors property, subject to execution to
the payment of the debt in suit Curran V. Ar
kansas Is Howard U. s., p 304.
This Court judicially knows, and it must de-
eide the question. as one of law upon its judicial
knowledge that the right to sell once the entire
absolute fee simple in land and give the purcha-
ser possession. is worth more will be more likely
TO realize the amount of money due on a particu-
lar judgment than the restricted right of selling
conditional interest in such land; and that hence
the taking away of such absolute night may tend
TO defeat in given cases the collection af debts
due purchaser will give mere for an aDsO-
L. al - r
ed men will be found to buy conditional titles as
mere investments which may be defeated by sim
ply refunding them their money with ten per cent
when much higher rate may be obtained on the
most select security.
But suppose the act in question is to be regard
ed as directed to the remedy; STILL as we have
seen, an act thus directed may impair the obga-
ton of contracts. Ii is very doubtful whether
those cases decided upon the general rule of in
ternational law, that the Ter loci governs as 10
Interpretation and effect to be given to the terms
of contract, and the Ter tori as to the remedy
upon il, safe guides 10 rely upon In determin-
ing the force to be accorded to the constitutional
provision quoted These express constitutional re-
strictiOns upon the legislative power peculiar
10 American Governments, and must be inter-
preted in accordance with the spirit and purpose
of their adoption. Stay and relief laws enacted
BY various States before the adoption of the Fed
eral Constitution, WERE in part at least. the evil
which they were designed 10 prevent the repeti-
ton of. The learned Chancellor De Saussure of
South Carolina, who lived in the times mentioned,
and who went upon the equity bench in 1908, in
note TO Glaze VS.. Drayton, vol. p l09. Of
his reports, decided in l7s4, says: "The
Legislature, in consideration of the distressed
state Of the country after the war, Revolution
ary War had passed an act preventing the i'm
mediate recovery Of debts and fixing certain ne.
IL. - 1.f.e. -le1.