State v. Sears

46 P. 785, 29 Or. 580, 1896 Ore. LEXIS 82

• Court: Oregon Supreme Court
• Decided: November 9, 1896
• Status: Published

Opinion

Per Curiam.

On the twenty-seventh of January, eighteen hundred and ninety-six, an opinion reported in 43 Pacific Reporter, 482, was filed in this case, holding that the act of the legislature, approved February twenty-third, eighteen hundred and ninety-five, (Laws, 1895, p. 59,) extending the time for redemption from execution sales of real estate from four to twelve months applied to foreclosure sales under mortgages executed prior to its passage and did not impair the obligation of the mortgage contract. Since that time, however, the Supreme Court of the United States, in Barnitz v. Beverly, 163 U. S. 118, on writ of error from the State of Kansas, has held that a state statute which extends the period of redemption beyond the time allowed at the date of the execution of the mortgage cannot constitutionally apply to a sale under a mortgage executed prior to its passage. Within the doctrine of that case, and the principle therein announced, our decision is erroneous, and, as the question is one of federal cognizance, we are of course bound to follow the decision of the highest federal court, The judgment heretofore rendered by this court must therefore be annulled and set aside, and the judgment of the court below reversed, and the cause remanded with directions to issue the peremptory writ of mandamus as prayed for.

Reversed.