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United States Supreme Court

65 U.S. 461

Howard  v.  Bugbee

THIS case was brought up from the Supreme Court of the State of Alabama, by a writ of error issued under the twenty-fifth section of the Judiciary act.

The case is stated in the opinion of the court.

It was argued by Mr. Phillips for the plaintiff in error, and submitted on a printed argument by Mr. Clay for the defendant.

Mr. Phillips stated the case, and then proceeded with his argument.

The statute under consideration is in all respects like that which in Bronson v. Kinzie was held to be unconstitutional. There the question was, whether the mortgagee was not entitled to an absolute sale, regardless of the statute. Here the question is, whether the purchaser, under such a sale, can be deprived of his right to the fee simple by virtue of the redemption provided by the statute. As the purchaser under a foreclosure suit is vested with all the rights of the mortgagee, the question as to the validity of the statute must be the same, whether applied to the one or the other.

The case of Grantley v. Ewing, 3 Howard, 716, in which the statute was determined to be unconstitutional, was, as in this, a contest with the purchaser, and only differs from it in the fact that the obnoxious statute was passed after the decree, but before the sale, while in this case it was passed before the decree.

An unconstitutional statute is no more obligatory on State than on Federal tribunals. It is absolutely void to all intents and purposes. It cannot, therefore, be said that such a statute controlled the decree and the purchase made under it. The purchaser was vested, by the register's deed, with full and absolute property, and cannot be divested by the terms of a statute which the State had not constitutional authority to enact.

The opinion of the Supreme Court of Alabama in this case is founded upon their previous decision in Iverson v. Shorter, and very frankly and naively admits that 'the decision in Iverson v. Shorter is a plain departure from the principle upon which the Supreme Court of the United States asserted in Bronson v. Kinzie the unconstitutionality of the statute of Illinois.'

It would seem, therefore to be confessed by the State court, that if this court adhere to its decision in Bronson v. Kinzie, their own judgment in this case must be reversed.

See, also McCracken v. Haywood, 2 Howard, 612.

Mr. Clay contended that the statute of Alabama did not impair the obligation of a contract, for the following reasons:

The distinction between rights and remedies, between those statutes which confer a right, and those which furnish a remedy for the enforcement of that right, is so marked that under ordinary circumstances I would not deem it necessary to offer any remarks upon it. The one inheres in and follows the contract wherever it may go. The other is dependent on the local legislation of the place where the parties seek to enforce the right. This distinction is taken in the following cases:

The People v. Tibbetts, 4 Cow., 384.

Baughn v. Nelson, 9 Gill, 299.

United States Bank v. Longworth, 1 McL., 35.

Pratt v. Jones, 25 Verm., 303.

Searcy v. Stubbs, 12 Geo., 437.

Paschal v. Perez, 7 Texas, 348.

Hope v. Johnson, 2 Yerg., 125.

Maltby v. Cooper, 1 Morris, 59.

West v. Creditors, 1 La. Ann. Rep., 365.

Newton v. Tibbets, 2 Eng. (Ark.,) 150.

Rockwell v. Hubbell, 2 Doug., 197.

It is also well drawn in the able dissenting opinion of Justice McLean, in the case of Bronson v. Kinzie, 1 How. U.S., 311, 322. See, also, the cases cited in the opinion of Ch. J. Walker, of the Alabama Supreme Court.

The statute of 1842 takes away no right. It leaves the debt unimpaired, leaves the debtor's property subject to the debt, and only modifies the form of enforcing the decree. It does not take away all substantial remedy, which, it is conceded, would impair the obligation of the contract. It simply enlarges the time, at the completion of which the purchaser at the mortgage sale will acquire an indefeasible title. It does not weaken the binding efficacy of the mortgage, nor does it impair the mortgagee's lien. It but changes the remedy for the enforcement of the lien.

Mr. Justice NELSON delivered the opinion of the court.


This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).