State ex rel. Purves v. Moyer

Per Curiam. The main questions involved in this case were lately decided by this court in the case of Swinburne v. Mills, as sheriff of Pierce county. There is, however, an additional question involved here, viz.: the right of the sheriff to receive fees for levying upon the mort.gaged premises. It was stated in Swinburne v. Mills, supra, that section 630 of the Code of Procedure had not been repealed by ch. L. of the Laws of 1897 (p. 70). That statement may possibly have been too broad. It was the intention of the court simply to state that it had not been repealed so far as concerned any questions that were involved in the case under consideration, the opinion in that case showing that the provision of the new law in relation to extension of time, which is in conflict with the lirovision of section 630 of the Code, would be in force [644] ■with relation to mortgages executed after the passage of the act of 1897, the minor question referred to there being the question which we are now discussing. Sec. 630, which provided for the mode of selling 'mortgaged land under foreclosure, does not provide that any levy shall be made by the officer, except for the deficiency, while in the act of 1897 there is a general provision for a levy. In obedience to the well established rule that the repeal of laws by implication is not favored, no law will be considered repealed the provisions of which are not inconsistent with the provisions of the later act; and while we hold that the provisions of the law of 1897 apply to mortgages,, so far as the postponement of the sale and the appraisement of the land are concerned, such provisions being expressly and directly in conflict with the old act, yet while the law of 1897 does provide for a levy, we think, considering both acts together, that it was not the intention of the legislature to make the law in relation to levy in the last act apply to mortgages. There is no reason why it should. A levy is nothing more than a lien, and the lien has already been established by the mortgage. At the most it could only be a directory provision, which would not be enforced in the absence of any utility in its enforcement. Tor the reasons stated in the opinion in the case above referred to, the judgment will be affirmed.