Jordan v. Wimer , 45 Iowa 65 ( 1876 )

Day, J.

i. practice: trial: appeal. I. It is claimed that appellant is not in a position to be heard in this court, because no motion was made f°r a trial upon written evidence. The abstract contains all the evidence. There is no conflict or dispute respecting the facts. Errors have been assigned. Whilst, therefore, appellant may not be entitled to a trial de •novo, he has a right to have the errors assigned considered. Walker v. Plumer, 44 Iowa, 406.

2..vendor’s, exists. II. Appellee claims that the doctrine has never yet been adopted in this State that the vendor shall have a lien, independently of the title bond or mortgage, for-his purchase money, and it is insisted that such lien

does not exist. This point was determined adversely to appellee in Johnson v. McGrew, 42 Iowa, 555.

3_. re_ constitutional law’ III. The principal question in the case arises under section 1940 of the Code, which is as follows: “No vendor’s lien for unpaid purchase money shall be recognized or enf°rce¿ *n any court of law or equity after a conveyance by the vendee, unless such lien is reserved by conveyance, mortgage, or other instrument duly acknowledged and recorded, or unless such conveyance by the vendee is made after suit brought by the vendor, his executor or assigns, to enforce such lien. But nothing herein shall be construed to deprive a vendor of any remedy now existing against conveyances procured through the fraud or collusion of the vendees therein, or persons purchasing of such vendees with notice of such fraud.”

Appellee contends that, under this section, the intervenor has no lien as against the mortgagee of the premises, no lien having been reserved in any written instrument. The intervenor insists that this section cannot, constitutionally, apply to his contract of sale, which was made before the section was enacted.

The Constitution of the United States, Art. 1, section 10, provides that no-State shall pass any law impairing the obligation of contracts. The Constitution of this State, Art. 1, section 27, imposes a similar restriction upon legislative authority.

To this appellee responds that there was no contract that the intervenor was to have a lien, and that, for this reason these constitutional provisions are not applicable. Citing Porter v. City of Dubuque, 20 Iowa, 440. It must be remembered, however, that it is not a contract simply but the obligation of. a contract which the constitution preserves from impairment. The obligation of a contract includes much that is not expressly stipulated for in the contract.

“ The obligation of a contract consists in its binding force on the party who makes it. This depends upon the laws in existence when it is made; these are necessarily referred to in all contracts, and form a part of them as the measure of the obligation to perform them by the one party and the right acquired by the other.- There can be no other standard by which to ascertain the extent of either, than that which the terms of the contract indicate, according to their settled legal meaning; when it becomes consummated the law defines the duty and the right, compels one party to perform the thing contracted for, and gives the other a right to enforce the performRnce by the remedies then in force. If any subsequent law affected to diminish the duty, or to impair the right, it necessarily bears on the obligation of the. con tract, in favor of one party, to the injury.of the' other; hence, any law which, in its operations, amounts to a denial or obstruction of the rights accruing by a contract, though professing to act only on the remedy, is directly obnoxious to the prohibition of the constitution.” Cooley’s Constitutional Limitations, 2d ed., p. 285, and cases cited. In Ogden v. Saunders, 12 Wheat., 213, Washington, J., said:

“ The obligation of a contract * * * is the law which binds the parties to perform their agreement. The law, then, which has this binding obligation, must govern and control the’contract, in every shape in which it is intended-to bear •upon it, whether it affects its validity, construction or discharge. It is, then, the municipal law of the State, whether that be written or unwritten, which is emphatically the law of the' contract made within the State, and must govern it throughout whenever its performance is sought to be enforced.” In the same case, Thompson, J., said: '“As I understand it, the law of the contract forms its obligation.” In the same case Trimble, J., said: “The obligation of the contract consists in the power and efficacy of the law which applies to, and enforces performance of, the contract, or the payment of an equivalent for non-performance. The obligation does not inhere and subsist in the contract itself, proprio vigore, but in the law applicable to the contract. This is the sense, I think, in which the constitution uses the term obligation.” Cooley on Constitutional Limitations, p. 285, note:

. The action of this court has been in entire harmony with these principles. In Rosier v. Hale, 10 Iowa, 470, it was held that “ An Act to provide for the appraisement of property sold under execution, approved March 31, 1860,” cannot constitutionally apply to contracts entered into prior to the date of its taking effect. In Maloney v. Fortune, 14 Iowa, 417, it was held that section 3664 of the Revision, allowing a year’s redemption after foreclosure sales, is inconsistent with the Constitution of the United States, and with that of the State of Iowa, so far as it affects contracts made prior to its passage. See, also, Harlan v. Sigler, Morris, 39, and Griffey v. Payne, Id., 68.

Applying these principles to the case in hand, the solution of it is easy.

On the 8th day of April, 1870, the intervenor sold and conr veyed the premises in question to Wimer, eleven hundred and fifty dollars of the purchase money remaining unpaid. In virtue of his contract of sale and conveyance, he acquired a right to a lien upon the premises, against Wimer and his grantees with notice, for the unpaid jourchase money. This right, secured hy the law then in force, forms a part, and a very essential part, of the obligation of the contract. Any legislation which destroys this right, impairs the obligation of the contract. It seems to us quite clear that section 1940 of the Code cannot constitutionally apply to contracts made before its passage.

E _. s'tbsequeni ..mortgage: IY. It is claimed, however, that the lien of the mortgagee must take precedence of that of the vendor, because the evidence does not show that the mortgagee hnew how much of the purchase money was unpaid.

But we think that, having knowledge that purchase money was unpaid, it was his duty to inquire and ascertain how much was unpaid.

Y. Appellant insists that his judgment is for too small an amount. But, as he has not made his debtor, Wimer, a party to the appeal, he can have no relief in this respect.

The court erred in postponing the lien of the vendor to that of the mortgagee.

Reversed.