The opinion of the court was delivered by
Mr. Justice McIver.
The sole inquiry raised by this appeal is as to the proper construction of the act of 1879 (17 Stat., 167), entitled “An act to declare the law in relation to liens on real estate,” incorporated in the General Statutes as section 1831. That section reads as follows : “No mortgage or deed having the effect of a mortgage, no judgment, decree, or other lien on real estate, shall constitute a lion upon any real estate after the lapse of twenty years from the date of the creation of the same : Provided, that if the holder of any such lien or liens as aforesaid shall, at any time during the continuance of such lien, cause to be recorded upon the record of such mortgage, deed having the effect of a mortgage, or shall file with the record of such judgment, decree, or other lien, a note of some payment on account or some written acknowledgment of the debt secured thereby, with the date of such payment or acknowledgment, such mortgage, deed having the effect of a mortgage, judgment, decree, or other lien, shall be and continue to be a lien for twenty years [5]*5from the date of the record of any such payment on account or acknowledgment: Provided, further, that nothing herein contained shall be construed to affect the duration of the liens of judgments as prescribed by section 310 of the Code of Procedure. ”
This pi’ovision thus inserted in the General Statutes of 1882 is, in substance and effect, identical with that found in the act of 1879; for although the phraseology of the second proviso was altered, yet such alteration did not affect the substantial meaning. In the act of 1879, the language of that proviso is: “That nothing herein contained shall be construed to affect the duration of the liens of judgments as prescribed by the fourteenth section of an act entitled ‘An act to alter and amend the Code of Procedure, being title V., part III., of the General Statutes,’ approved March 8, 1875,” which act was a mere repetition in toticlem verbis of the act of 1873 (15 Stat., 495), and was passed under the unfounded apprehension, as it proved (Arnold v. McKellar, 9 S. C., 335), that the act of 1873 had failed to become a law. Now, as section 14 of the act of 1875 was, so far as the duration of the lien of a judgment is concerned, substantially the same as section 310 of the Code as it read in 1882, the only difference being in certain changes in the phraseology rendered necessary by the difference in the dates of the two enactments, it seems to me that there is no substantial difference between the second proviso as found in the act of 1879, and as it is expressed in section 1831 of the General Statutes of 1882.
The obvious effect, therefore, of this proviso, whether read as it is found in the act of 1879 or in section 1831 of the General Statutes, was to exempt all judgments recovered after the adoption of the code from the operation of the legislation found in the preceding part of the act or section; for it expressly declares “that nothing herein contained shall be construed to affect the duration of the liens” of such judgments. It cannot be construed either to extend or limit the duration of the lien of such judgments, for to do either would be to affect the duration of the lien, and that is expressly forbidden.
As I understand, it is conceded that the act of 1879 could not affect the duration of the lien of judgments recovered between the adoption of the code and the passage of the act of 1879, but it is [6]*6suggested that it may affect the lien of judgments recovered after the passage of the act of 1879, by extending the lien of such judgments from ten years, as prescribed by the code as it then stood, to twenty years. But besides the fact that this would be a strained construction of the act of 1879, the manifest purpose of which was to declare the limit and not to extend the duration of the lien of judgments, which possibly might be permissible with a view to avoid giving the act a retroactive effect, it seems to me that it would be impossible to give the act such a construction without violating the express prohibition contained in the proviso. The code had expressly prescribed'ten years as the duration of the lien of all judgments recovered after the 25th of November, 1878, and when it was declared by the proviso under consideration that the act should nob be construed to affect the duration of the liens of judgments as prescribed by the code, I do not see how the court, in the face of this express declaration of the legislative will, can put such a construction upon the act as would necessarily affect the duration of the lien of a judgment recovered after the date specified by extending its duration from ten years as prescribed by the code to twenty years, as might possibly be inferred from the terms of the act; and it seems to me that the proviso was inserted for the very purpose of avoiding any such inference.
If, therefore, the act of 1879 cannot be applied to judgments recovered after the adoption of the code, the intention must necessarily have been to refer to those recovered prior to the adoption of the code, for there are none others to which it could apply ; and the terms of the act itself show that such was the intention of the legislature, for they were manifestly dealing with such judgments as had a lien for as long a period as twenty years, and awtc-code judgments were the only judgments which ever had a lien for that length of time, and they must necessarily have been the class of judgments to which the legislature referred ; and the only class, as all others are expressly exempted from the operation of the act. It is true that this view' gives the act a retroactive effect; and it is equally true that the well settled rule is that a statute must never be given a retrospective operation unless such a construction is required by the express terms of the .statute or [7]*7by necessary implication. Now, while the act under consideration contains no express words declaring that it shall have a retroactive effect, yet it seems to me that the intention that the act should have such an effect is necessarily implied; for, as we have seen, it could not otherwise have any effect at all; for if it cannot apply to any judgment recovered after the adoption of the code, then necessarily it must apply to judgments recovered before that time.
If, then, the intention of the legislature was that the act should be retrospective, it will only be necessary to inquire whether it is within the power of the legislature to pass such an act. There is nothing in the constitution of the Hnited States or of this State which forbids the general assembly from passing a retrospective act, provided such act does not impair the obligation of a contract, or divest vested rights resting on contract, or vested rights of property. McLure v. Melton, 24 S. C., 570, and the cases there cited. The simple fact, therefore, that the act is retrospective does not render the act unconstitutional. Hence before the act can be declared unconstitutional, which all the authorities declare can only be done in a clear case, it must appear that the necessary effect of the act is to impair the obligation of a contract, or divest some vested right resting on contract, or some vested right of property. If, therefore, any construction can be placed upon the act which will not effect any of those results, it seems to me that .it is the duty of the court to adopt such construction.
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The opinion of the court was delivered by
Mr. Justice McIver.
The sole inquiry raised by this appeal is as to the proper construction of the act of 1879 (17 Stat., 167), entitled “An act to declare the law in relation to liens on real estate,” incorporated in the General Statutes as section 1831. That section reads as follows : “No mortgage or deed having the effect of a mortgage, no judgment, decree, or other lien on real estate, shall constitute a lion upon any real estate after the lapse of twenty years from the date of the creation of the same : Provided, that if the holder of any such lien or liens as aforesaid shall, at any time during the continuance of such lien, cause to be recorded upon the record of such mortgage, deed having the effect of a mortgage, or shall file with the record of such judgment, decree, or other lien, a note of some payment on account or some written acknowledgment of the debt secured thereby, with the date of such payment or acknowledgment, such mortgage, deed having the effect of a mortgage, judgment, decree, or other lien, shall be and continue to be a lien for twenty years [5]*5from the date of the record of any such payment on account or acknowledgment: Provided, further, that nothing herein contained shall be construed to affect the duration of the liens of judgments as prescribed by section 310 of the Code of Procedure. ”
This pi’ovision thus inserted in the General Statutes of 1882 is, in substance and effect, identical with that found in the act of 1879; for although the phraseology of the second proviso was altered, yet such alteration did not affect the substantial meaning. In the act of 1879, the language of that proviso is: “That nothing herein contained shall be construed to affect the duration of the liens of judgments as prescribed by the fourteenth section of an act entitled ‘An act to alter and amend the Code of Procedure, being title V., part III., of the General Statutes,’ approved March 8, 1875,” which act was a mere repetition in toticlem verbis of the act of 1873 (15 Stat., 495), and was passed under the unfounded apprehension, as it proved (Arnold v. McKellar, 9 S. C., 335), that the act of 1873 had failed to become a law. Now, as section 14 of the act of 1875 was, so far as the duration of the lien of a judgment is concerned, substantially the same as section 310 of the Code as it read in 1882, the only difference being in certain changes in the phraseology rendered necessary by the difference in the dates of the two enactments, it seems to me that there is no substantial difference between the second proviso as found in the act of 1879, and as it is expressed in section 1831 of the General Statutes of 1882.
The obvious effect, therefore, of this proviso, whether read as it is found in the act of 1879 or in section 1831 of the General Statutes, was to exempt all judgments recovered after the adoption of the code from the operation of the legislation found in the preceding part of the act or section; for it expressly declares “that nothing herein contained shall be construed to affect the duration of the liens” of such judgments. It cannot be construed either to extend or limit the duration of the lien of such judgments, for to do either would be to affect the duration of the lien, and that is expressly forbidden.
As I understand, it is conceded that the act of 1879 could not affect the duration of the lien of judgments recovered between the adoption of the code and the passage of the act of 1879, but it is [6]*6suggested that it may affect the lien of judgments recovered after the passage of the act of 1879, by extending the lien of such judgments from ten years, as prescribed by the code as it then stood, to twenty years. But besides the fact that this would be a strained construction of the act of 1879, the manifest purpose of which was to declare the limit and not to extend the duration of the lien of judgments, which possibly might be permissible with a view to avoid giving the act a retroactive effect, it seems to me that it would be impossible to give the act such a construction without violating the express prohibition contained in the proviso. The code had expressly prescribed'ten years as the duration of the lien of all judgments recovered after the 25th of November, 1878, and when it was declared by the proviso under consideration that the act should nob be construed to affect the duration of the liens of judgments as prescribed by the code, I do not see how the court, in the face of this express declaration of the legislative will, can put such a construction upon the act as would necessarily affect the duration of the lien of a judgment recovered after the date specified by extending its duration from ten years as prescribed by the code to twenty years, as might possibly be inferred from the terms of the act; and it seems to me that the proviso was inserted for the very purpose of avoiding any such inference.
If, therefore, the act of 1879 cannot be applied to judgments recovered after the adoption of the code, the intention must necessarily have been to refer to those recovered prior to the adoption of the code, for there are none others to which it could apply ; and the terms of the act itself show that such was the intention of the legislature, for they were manifestly dealing with such judgments as had a lien for as long a period as twenty years, and awtc-code judgments were the only judgments which ever had a lien for that length of time, and they must necessarily have been the class of judgments to which the legislature referred ; and the only class, as all others are expressly exempted from the operation of the act. It is true that this view' gives the act a retroactive effect; and it is equally true that the well settled rule is that a statute must never be given a retrospective operation unless such a construction is required by the express terms of the .statute or [7]*7by necessary implication. Now, while the act under consideration contains no express words declaring that it shall have a retroactive effect, yet it seems to me that the intention that the act should have such an effect is necessarily implied; for, as we have seen, it could not otherwise have any effect at all; for if it cannot apply to any judgment recovered after the adoption of the code, then necessarily it must apply to judgments recovered before that time.
If, then, the intention of the legislature was that the act should be retrospective, it will only be necessary to inquire whether it is within the power of the legislature to pass such an act. There is nothing in the constitution of the Hnited States or of this State which forbids the general assembly from passing a retrospective act, provided such act does not impair the obligation of a contract, or divest vested rights resting on contract, or vested rights of property. McLure v. Melton, 24 S. C., 570, and the cases there cited. The simple fact, therefore, that the act is retrospective does not render the act unconstitutional. Hence before the act can be declared unconstitutional, which all the authorities declare can only be done in a clear case, it must appear that the necessary effect of the act is to impair the obligation of a contract, or divest some vested right resting on contract, or some vested right of property. If, therefore, any construction can be placed upon the act which will not effect any of those results, it seems to me that .it is the duty of the court to adopt such construction.
To determine this question it is necessary to inquire into the scope, purport, and object of the act; and for this purpose we must ascertain what was the old law which this act was designed to amend. Conceding that under that law there was no limit to the duration of the lien of a judgment or mortgage, yet it was well settled that after the lapse of twenty years the debts secured by such liens wTere presumed paid and thus the liens were extinguished, but still such presumption could be rebutted by proof of some payment on account, or some such positive acknowledgment as would imply a promise to pay. This being the state of the law. it seems to me that the object of the act was not to limit the duration of such liens, but simply to declare (and it is noticeable [8]*8that such was the word used in the title) what should be the evidence of such payment or new promise as would be sufficient to rebut the presumption of payment. Under the old law neither a judgment nor a mortgage after the lapse of twenty years constituted a lien, because of the presumption of payment, which though susceptible of being rebutted by evidence, the nature and kind of such evidence was not distinctly defined, and the object and effect of the act was to declare what should be, after the passage of the act, the kind of evidence necessary to rebut the presumption of payment. The act in substance declares that no judgment or mortgage shall constitute a lien after the lapse of twenty years, unless some note of payment on account or some written acknowledgment of the debt is recorded on the record of the mortgage, or filed with the record of the judgment; the only alteration being in the rules of evidence, not in any wise affecting the previously existing right.
It seems to me that this is the proper construction of the act; and, at all events, it is capable of such a construction; and if so, then, with a view to avoid a conflict with the constitution, it is the duty of the court to adopt such construction. All the authorities agree that the right to have one’s controversies determined by the rules of evidence existing at the time the contract is entered into is not a vested right, and therefore may be changed by retroactive legislation without any violation of the constitution. Goal. Gon. Lim., 367-8, and 288, with the cases there cited. See also Endlich on Interpretation of Statutes, section 284, especially the notes on pages 383-4, where many cases sustaining the proposition stated are cited. It there appears that after the passage of Lord Tenterden’s act requiring that the promise relied upon to bar the statute of limitations must be in writing, it was held that such legislation was applicable to pre-existing contracts. This is, in principle, identical with the present case. It is true that some of the cases hold, and perhaps rightly, that such legislation cannot be applied to a pre-existing contract, unless a reasonable time has been afforded the party to be affected thereby, to conform to the requirements of the new law ; but even conceding such a qualification of the rule, there is nothing to prevent its application here, for the appellant certainly had a [9]*9reasonable time to conform to the new law; for the act was passed in 1879, upwards of seven years before the expiration of the twenty years from the date of the entry of his judgment in February, 1867.
Under this view of the case, the important and interesting question (as to which a good deal might be said) whether an act limiting the duration of the lien of a judgment can be applied to pre-existing judgments without a violation of the constitution, does not arise. Nor is it necessary to consider the effect of the act of 1886 (19 Stat., 229), amending section 310 of the Code.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.
Mr. Justice McGowan concurred.