Hicks v. . Kearney

Adams, J. When the consent judgment of 1923 was rendered, the situation was this: W. Hal Mann had executed the notes and the mortgage to Mrs. Williams and had sold his equity of redemption to Kearney, who had paid a part of the purchase price and had executed certain purchase-money notes, which were secured by a deed of trust. It had been agreed between them that W. H. Ruffin should hold Kearney’s notes for the purchase money to the amount of $1,000 to indemnify Kearney against possible loss arising out of encumbrances on the property. The notes and the mortgage had been assigned by Mrs. Williams to Allen, who had advertised the mortgaged property for sale. Kearney, in effect, had assumed the debt Mann owed Allen, and Mann, in effect, had agreed that Kearney should be primarily liable to Allen. Under these circumstances it was consented by the parties to the judgment that the money or securities deposited with W. H. Ruffin should be applied in payment of the remainder due on the notes and the mortgage executed by W. Hal Mann to Mrs. Williams and assigned to Allen. The trial judge admitted the judgment in evidence, and instructed the jury as follows: “As to the second issue, the court charges you that *318 if you find from tbe evidence, and by its greater weight, that prior to 1 January, 1924, J. W. Mann, tbe duly qualified and acting administrator of W. Hal Mann, deceased, entered into an agreement witb J. M. Allen and 0. B. Kearney, under tbe terms of wbicb tbe defendant, J. M. Allen, was allowed tbe amount of bis notes out of tbe proceeds beld by Ruffin, trustee, and Ruffin, trustee, authorized and directed to pay over out of said proceeds tbe amount of said notes, then it was not incumbent upon Allen to file an affidavit witb tbe register of deeds under tbe statute of 1923; and if you so find from tbe evidence, and by its greater weight, you will answer tbe second issue No.’ ' If you are not so satisfied, you will answer tbe issue ‘Yes.’ ” All tbe exceptions discussed in tbe plaintiff’s brief converge in an assault upon tbe admissibility of tbe judgment and upon tbe instruction relating to it, and tbe question is whether either exception relied on by tbe plaintiff discloses reversible error. Tbe exceptions are based chiefly on tbe contention that neither W. H. Ruffin, J. W. Mann, administrator, nor Mrs. Conway was a party to tbe action in wbicb tbe judgment was entered, and that neither is.bound by it; and, further1, that no privity existed between tbe several administrators of W. Hal Mann. All tbe other exceptions relating to tbe second issue may" be treated as correlated witb these. Tbe plaintiff cites several authorities in support of bis contention, but we think they are not controlling when considered in connection witb tbe act of 1923. Tbe material portion of this subsection follows: “Tbe conditions of every mortgage, deed of trust, or other instrument securing tbe payment of money shall be conclusively presumed to have been complied witb or tbe debt secured thereby paid as against creditors or purchasers for a valuable consideration from tbe trustor, mortgagor, or grantor, from and after tbe expiration of fifteen years from tbe date when tbe conditions of such instrument by tbe terms thereof are due to have been complied witb, or tbe maturity of tbe last installment of debt or interest secured thereby, unless tbe bolder of tbe indebtedness secured by such instrument or party secured by any provision thereof shall file an affidavit witb tbe register of deeds of tbe county where such instrument is registered,” etc. Public Laws 1923, ch. 192. In plain and specific language it is said tbe conditions of tbe mortgage shall be conclusively presumed to have been complied witb (if no affidavit is filed) as against creditors or purchasers for a valuable consideration from tbe mortgagor, etc. Tbe plaintiff, as we understand, takes tbe position that be represents not only the interest of the testator, but of tbe creditors of tbe estate, and that those bolding claims for funeral expenses, doctors’ bills, and hospital charges are creditors within *319 the meaning of the act. Apart from the fact that these alleged creditors are not formal parties to the suit, and that it does not appear that the note in the hands of the trustee or the foreclosure of the deed of trust is necessary to the payment of their demands, the record shows that the testator died in the summer of 1921, and that the 'claims presented to the plaintiff arose before the act of 1923 went into effect. Neither of these debts could have been contracted on the faith of the statutory presumption unless the statute be given retroactive effect. We think it is not susceptible of such construction. According to the verdict, the notes secured by the mortgage of 1903 were not barred by the ten-year statute of limitations. Allen, as assignee of the notes and the mortgage, therefore had the legal right of foreclosure when the debts in question were contracted. The act of 1923, though ratified 6 March, was to be in force from and after 1 January, 1924. If construed as relating back and giving to the hospital, the physicians, and the undertaker, as creditors of the testator’s estate, rights which they did not have when the debts were contracted, it would be given retrospective operation, and this, we think, the Legislature did not intend. “There is always a presumption that statutes are intended to operate prospectively only, and words ought not to have a retrospective operation unless they are so clear, strong and imperative that no other meaning can be annexed to them, or unless the intention of the Legislature cannot be otherwise satisfied. Every reasonable doubt is resolved against a retroactive operation of a statute. If all of the language of a statute can be satisfied by giving it prospective action, only that construction will be given it. Especially will a statute be regarded as operating prospectively when it is in derogation of a common-law right, or the effect of giving it retroactive operatipn will be to destroy a vested right or to render the statute unconstitutional.” 25 R. C. L., 787; Black on Interpretation of Laws, 252. In Greer v. Asheville, 114 N. C., 678, it is said: “Unless the legislative intent to the contrary is made manifest by the express terms of the statute, or by necessary implication arising out of it, it will, as a rule, be held to operate prospectively only — never retroactively.” And in Lowe v. Harris, 112 N. C., 473: “But the Legislature of North Carolina is restrained by Article I, section 10, of the Constitution of the United States, and Article I, sec. 17, of the Constitution of North Carolina, not only from passing any law that will divest title to land out of one person and vest it in another (except where it is taken for public purposes after giving just compensation to the owner), but from enforcing any statute which would enable one person to evade or avoid the binding force of his contracts with another, whether executed or executory. Robinson v. Barfield, 6 N. C., 391; Butler v. Penn, supra; R. R. v. *320 Nesbit, 10 Howard, 395; Fletcher v. Peck, supra; Terrell v. Taylor, 9 Cranch, 43; Call v. Woodard, 4 Wheat., 519.” See, also, S. v. Littlefield, 93 N. C., 614; Elizabeth City v. Comrs., 146 N. C., 539; S. v. Pridgen, 151 N. C., 651; Jones v. Schull, 153 N. C., 517; Waddill v. Masten, 172 N. C., 582; Railway Co. v. Railroad Co., 166 U. S., 557; 41 Law Ed., 1114; Shwab v. Doyle, 258 U. S., 529; 66 Law Ed., 747. In our opinion, the conditions of the mortgage are not conclusively presumed to have been complied with or the debt paid as against those who became creditors or purchasers of the mortgagor before the statute went into effect. It is immaterial that the suit was delayed until 3 January, 1924. The debts were contracted more than two years before that time. In this view of the ease, all the exceptions relating to the matters involved in the second issue must be overruled. As to the first issue, we do not understand the plaintiff as insisting that there is reversible error. At any rate, none has been pointed out or discovered. No error.