The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1933-06-13
HIGH court RULES
MORTGAGE MEASURE
UNCONSTITUTIONAL
Holds Emergency Measure Does
Not Apply to Contracts
Previously in Force
AFFECTS LATE DEALS ONLY
Decision Knocks Out Act Ex-
tending Time Of Redemp-
ton From Foreclosure

The North Dakota supreme court. in
decision announced Tuesday, held
that Senate Bill No. 2, extending the
period Of redemption from mortgage
foreclosure sale, does not apply to
mortgages executed prior to passage of
the law, but is constitutional as 1t
applies to mortgages executed and
foreclosed during the period Of the
acts operation.
The court ruled that application of
the law to mortgages executed prior
to its passage impairs the obligations
OF contract and deprives a person Of
property without due process Of law,
in violation of the state and federal
constitutions.
Laws fixing the period OF redemp-
ton from real estate foreclosure sale,
existing at the time of entering into
contract of mortgage. the court held
Is q part of the contract Of the r.ort-
gage, and any change in the la fix
ing the period of redemption IS an
impairment of the obligations of such
contract.
Is Emergency Measure
The act, extending the time In
which redemption may be made from
real estate mortgage foreclosure and
real estate execution sales, was held to
be IAN emergency measure, temporary
in character, the provisions Of which
by its own terms, expire in two years:
and such a law is valid enactment
governing mortgages executed and
foreclosed during the period Of its
operation.
Laws now in force, inconsistent
Herewith, so far as such mortgages
are concerned. are suspended for two
years from February 81, 1888. but
thereafter are in force and effect, and
foreclosure sales made after the date
named are to be governed by such
laws now suspended"
The law was an emergency measure
which became effective last February
q.
| In the exercise of the police power
Of the state, the courts decision said
the determination by the legislature
that such a great social emergency
exists as demands the exercise of the
police power lis entitled to great res
pect, and ordinarily is controlling on
the courts; but where the legislature
in enacting me> cures to cope with
such social emergency, assumes power
which by the constitution Of this state
is expressly forbidden to 1t and Il
taken forever out of the powers Of
government OF this state, the legis-
lature is prevented by the constitu-
ton from exercising such power, nc
matter what the reason may be-"
| Grave Social Problem
| The court said 1t is clear from the
law that in its enactment the legis-
lature was endeavoring to grapple
with a grave social emergency con-
fronting the people Of this state, an
emergency which, in the opinion Of
the law-making body Of the state had
become a menace to the public health
peace and comfort OF the state"
Judicial notice was taken by the
court that because of enactment Of
the law land the official declarations
which followed, prudent men placed
confidence in these acts and declara-
lions and thus large percentage OF
our people have proceeded on the
theory that all foreclosures are gov
erned by this act"
Where, under such conditions
men In good faith" have proceeded
to sow crops, the court said, they
will be given protection OF their
rights by the courts.
| Protect Tenants Rights
"Mortgagors and their tenants who
remained in possession under the
provisions of this law and the dec
larations Of public officials are not
trespassers," the court held. "They
; have equitable rights In crops plant
ed by their labor and with their
money. Such equitable rights the
| courts Of the land will protect fully
| and completely"
The courts decision affirmls the
Judgment OF District Court Judge
George M. McKenna who granted q
writ of mandamus requiring the
sheriff Of Emmons county to execute
sheriff's deed. The action was
brought by Harry G.. Clevering In
Emmons county who obtained GER
tificate Of mortgage sale from the
sheriff Feb. q, 1882. No redemption
| was made at the expiration of the
one-year period Of redemption and
Clevering demanded a sheriff's deed,
which the sheriff refused. Clevering
| applied to the district court and q
writ of mandamus was granted. The
sheriff appealed to the supreme court
contending that under the new law
the period OF redemption had been
| extended two years and applied to
mortgages executed before passage OF
the law.