Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] 15 Cal. 516 at 527.
Original Opinion of April 1860, Reported at: 15 Cal. 516.
Rehearing denied.
JUDGES: On petition for rehearing, Baldwin, J., delivered the opinion of the Court. Field, C. J., and Cope, J., concurring.
OPINION
BALDWIN, Judge
On petition for rehearing, Baldwin, J., delivered the opinion of the Court--Field, C. J., and Cope, J., concurring.
The petition for a rehearing questions our conclusions in this important case, and asks a reconsideration of them. We have reviewed the argument in the light of the cases cited from the Supreme Court of the United States. We agree with the counsel, that the decisions of that high tribunal upon the construction and effect of the Federal Constitution are of authoritative obligation upon us, and if such construction be as contended for by the appellant, we would unhesitatingly follow it. But the question is, whether the Supreme Court has decided the principle in this case contrary to the rule we have laid down. We think it has not. The appellant insists that the fact that the plaintiff below held, as assignee, the mortgages assigned to him after the passage of the Act of 1859, authorized him to hold these mortgages as debt, the amount of which was to be added into the sum required of Davis in order to redeem the premises. These mortgages passed into judgments, and the judgments were, with one exception, a lien prior to the Act of 1859. But, as said before, the judgments on these mortgages were not assigned to the Tuolumne Company until after the passage of the Act of 1859. We showed, in this opinion, that this act, as to the mode and terms of redemption, is in substitution of the Act of 1851. It would be difficult to see how any statutory right of redemption existed under the Act of 1851, after the passage of the Act of 1859, if this act was in substitution of the first act, and a repeal of it as to the mode and terms of redemption. The plaintiff, then, comes to redeem under the Act of 1859, and must abide by the provisions of that act. But he claims that he, as assignee of a mortgage, has the rights of the original mortgagee at the time of the mortgage and since; that these rights are governed by the law in force at the date of the mortgage, and this law is a part of the mortgage contract, and therefore it was not competent for the Legislature to change this law to his prejudice, since that would be impairing the obligation of the contract; and the two cases in the Supreme Court of the United States (1 How. 311, and 2 Id. 609 ) which have given rise to much discussion, are cited. But the answer to this view is, that the statute gives all the rights to redeem upon which the plaintiff, in the mode he has adopted, can claim; that the Statute of 1859 gives no rights to redemptioner as assignee--that is to say, no right to buy in a judgment or mortgage, and hold the amount of it as a part of the sum required to be paid by a subsequent redemptioner. The question, in this aspect of it, is not as to the right of the mortgagee under the mortgage, but it is as to the right of the assignee as a redemptioner under an act which does not allow him to take an assignment of a debt, and hold it as a part of the sum to be paid by a subsequent redemptioner in order to redeem from him.
It is said that the plaintiff was a mortgagee at and before the date of the Act of 1858, and therefore that the contract of mortgage, taken in connection with the law in force at the time, gave him the right to buy in judgments after he had redeemed, and to hold these judgments as a part of the sum to be paid by a subsequent redemptioner. It is not easy to see how this claim can be maintained. There might be more force in this argument, if the Tuolumne Redemption Company had redeemed under the Act of 1851. But it did not. If our general reasoning is correct in the former opinion, it follows that this remedial law no more applies to a contract of mortgage than a contract of judgment. Both of these kinds of contracts are protected alike under the Constitution. But the whole aim of our opinion was to show that this matter of redemption was a new contract, not connected with the original contract, but created or authorized by statute as a part of the remedy. It may be true, as in the case of Bronson v. Kinzie, 1 How., that if the contract of mortgage provided its own remedy for a breach of its condition, as by absolute sale after a decree of foreclosure, that an act subsequently passed giving another right of redemption and postponing the sale, would violate the Constitution. But why? Because the contract in force at the time would be in this part of it violated and set aside. But this is a very different question from that here. Here, there is nothing taking away any present remedy from the mortgagee, or right to subject the property, as the contract provides, but merely a provision declaring that persons answering to a certain description--mortgagees, for example--may redeem; but it is competent for the Legislature to repeal this provision at any time, before a party is entitled to claim it. In other words, if the act were that a mortgagee may become assignee of another mortgage, and may, as such assignee, redeem property sold under judgment, we suppose the Legislature might repeal the provision at any time before he was such assignee.
But at all events, however difficult the question and unsatisfactory the distinction and reasonings upon this subject, one thing is certain: the statute is clear, and its unconstitutionality is not, and in such cases we cannot hold the act void.
But we think this case may be put on other grounds. The plaintiff only claims in the petition that its title inures by virtue of the assignment to it of these judgments. It makes no claim as mortgagee or as assignee of a mortgagee. By the statute, it might have redeemed as judgment creditor or as mortgagee. But this statute is not a substitute for his right to redeem as mortgagee by the general principles of equity applicable to mortgages. If it was made a party to the suit, it might any time before foreclosure have redeemed, and under the statute it had the right to redeem, as such junior mortgagee, upon the terms allowed to other redemptioners. If not made a party, the mortgagee in not bound at all by the decree of foreclosure, and may file his bill to redeem at any time within the statutory bar. This statutory provision, then, is in aid of the remedy and rights given the mortgagee by the general law, and is purely a remedial provision, which, as to this plaintiff, the Legislature had a right to make and alter as it has done.
Rehearing denied.