Norris v. Tower

167 N.W. 728, 102 Neb. 434, 1918 Neb. LEXIS 84

• Court: Nebraska Supreme Court
• Decided: May 4, 1918
• Docket: No. 20104
• Status: Published

Opinion

IzETTON, J.

The only question presented is whether the amended statute by which appraisal is dispensed with impairs the obligation of the contract, and is, therefore, in violation of the Constitution of the state and of the United States. Generally speaking, the laws in force when a contract is entered into form a part of it and enter into its obligation. But there is a consensus of opinion that the laws giving a remedy for its breach may be modified or changed without impairing its obligation provided an adequate remedy is left. Chief Justice Marshall said: “the distinction between the obligation of a contract, and the remedy given by the legislature to enforce that obligation, has been taken at the bar, and exists in the nature of things. Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct.” Sturges v. Crownishield, 4 Wheat. (U. S.) *122, *200.

In Bronson v. Kinzie, 1 How. (U. S.) *311, *315, Chief Justice Taney said: “Undoubtedly a state may regulate at pleasure tbe mode of proceeding in its courts in relation to past contracts as well as future, * * * and, although a new remedy may be deemed less convenient than tbe old one, and may in some degree render tbe recovery of debts more tardy and difficult, yet it will not follow that the law is unconstitutional. Whatever belongs, merely to the remedy may be altered according to the will of the state, provided the alteration does not impair the obligation of the contract.” The legislature may change the form of the remedy, provided it does not affect injuriously the rights of either party to the contract. Oshkosh Waterworks v. Oshkosh, 187 U. S. 437; Architectural Decorating Co. v. National Surety Co., 115 Minn. 382; United States, Cincinnati & Columbus Traction Co. v. Baltimore & O. S. W. R. Co., 226 U. S. 14; Black, Constitutional Prohibitions, sec. 135. The mortgage contract imposed upon the defendant the obligation to pay the debt secured thereby, and gave the creditor the right to sell the lands of the debtor if he failed to do so. It also gave the debtor the right to have this done by means of a legal remedy not more prejudicial to his interests than the statute then in force.

In most of the cases in which the question has been raised, it is the creditor who has been the complaining party, the legislators having imposed limitations or burdens upon the means provided for the collection of his debt. In an early Nebraska case, however, a debtor was the complaining party. Under the former law appraisement was required to be made, regardless of any incumbrance on the property, and the sale must be for at least two-thirds of the appraised value, while under the new act the sheriff was directed to ascertain incumbrances of record, and after deducting them to return the remainder as the real value. It was said by Lake, J.: “ 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.” Jones v. Davis, 6 Neb. 33.

Under the former statute affecting the sale in this case, the appraisers acted judicially, and unless their appraisal was attacked for fraud or other reason, when a sale was made for two-thirds, of the appraised value of the land, it was the duty of the court to confirm the sale. Objections to the appraisement were required to be made before the sale, and were usually supported by affidavits that the property exceeded in value the amount fixed by the appraisal. These were met by counter affidavits, and the court determined the question thus presented at the time of -' the confirmation. If the appraisement was not so low as to indicate fraud, a sale made at two-thirds of the appraised value was usually confirmed. A more unsatisfactory method of determining the real value of the property than by such ex parte affidavits could hardly have been devised. A somewhat extended experience in the district court has convinced the writer that it was often more of a contest as to the skill of those who drew the affidavits and the elasticity of conscience of those who signed them than a real inquiry as to the actual value of the land, and the rights of the debtor were 'apt to be 'injuriously affected unless great discrimination was exercised.

Under the new law it is incumbent upon the court to be satisfied that the sale has in all respects been made in conformity to the law, that the property was sold for fair value under the circumstances and conditions of the sale, or that a subsequent sale would not realize a greater amount. This substitutes a judicial investigation of value, by a court, in which witnesses may be examined and cross-examined, for the judgment of appraisers who may be selected by the sheriff, at his option, from persons living anywhere in the county, perhaps remote from the premises to be valued, or perhaps from persons living in cities or towns and unfamiliar with the price of agricultural property, or vice versa. We are convinced that the new act merely affects the remedy. It seems fully to guard the interests of the debtor, and does not impair the obligation of the contract or violate the Constitution of the state of Nebraska or that of the United States.

Affirmed.