Jones v. Davis

6 Neb. 33

• Court: Nebraska Supreme Court
• Decided: October 15, 1877
• Status: Published

Opinion

Lake, Ch. J.

This is an appeal from an order confirming a sale of real estate by a sheriff under a decree of foreclosure, and the only questions presented relate to the constitutionality of the act of the legislature of 1875, which provides “ for the more equitable appraisement of real property under judicial sale.”

It seems to have been supposed by counsel for the appellant that this act is open to the same objection which we found in Smails v. White, 4 Neb., 353, to the act then under review. It is clear, however, that it is not. This act is of itself a complete law, covering the whole subject of the appraisal of real property exposed to judicial sale; and it in express terms repeals those provisions of the statute under which appraisements were formerly made, so that now it is only necessary to look to this particular act to know what is required to constitute a valid appraisement.

It was expressly declared in Smails v. White that legislation of this character was unobjectionable and was not within the mischief designed to be remedied, nor repugnant to the constitutional provision which declares that “no law shall be revised or amended unless the new act contains the entire act revised and the sections amended,” etc. "We must hold therefore that this objection cannot be maintained.

But it is further contended that the act in question violates both the constitution of this state and the constitution of the United States in this, that it has the effect to impair the obligation of the contract. It is true that the act was passed after the execution of the mortgage; and it is also true that it materially changes the mode of ascertaining the value of the property prior to its sale. Under the law as it stood when the contract was executed the appraisement was required to be made regardless of any incumbrances that might be resting upon it, and the sale must have been for at least two-thirds of the value of the property thus ascertained, while now, the sheriff is directed to ascertain all incumbrances of record, and, after deducting them, to return the remainder as the real value for the purposes of the sale. This we regard as in no sense impairing the obligation of the contract, but merely as a change of the remedy or mode of enforcing the contract, which is clearly within the control of the legislature. Morse v. Gould, 1 Kern., 281. Von Baumbach v. Bade, 9 Wis., 559. Walter v. Bacon, 8 Mass., 468.

For these reasons the order of the district court confirming the sale must be affirmed.

Affirmed.