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(229 Mich. 241, 201 N. W. 227.) contract, and such change is void as ble to mortgages executed before impairing its obligation.'

its enactment, was unconstitutional; Ruling Case Law, speaking on that the law at the time of the this subject (26 R. C. L. p. 434), making of the mortgage became says: “The sale of land for delin- a part of the contract, which could quent taxes constitutes a contract not be impaired by subsequent between the purchaser and the state, legislation. These cases, we think, the obligation of which cannot be demonstrate that a change in the impaired to the disadvantage of the period of redemption is not a change purchaser by subsequent legislation. in the remedy, but is a change afThe purchaser is entitled to insist fecting the substantial rights of the that, as to matters of substance per parties. The importance of the taining to the interest acquired by question before us, however, impels him and the right of redemption re- consideration of cases from other maining in the owner, the law in jurisdictions. force at the time of the sale shall In Bronson v. Kinzie, 1 How. 311, govern.'

11 L. ed. 143, the court had before And 12 C. J. 1002 thus states the it a statute of the state of Illinois rule: “The law in force at the time having reference to the foreclosure a tax sale is made becomes a part of of mortgages, and it was there held the purchaser's contract, and any (we quote the syllabus): "A state subsequent statute which attempts law passed subsequently to the exto deprive him of any substantial ecution of a mortgage, which deright secured to him by the existing clares that the equitable estate of law is void as impairing the obliga- the mortgagor shall not be extintion of contracts.”

guished for twelve months after a Some of the early cases in this sale under a decree in chancery, and court are, we think, by analogy, ap- which prevents any sale unless two plicable. Prior to Act 62 of 1843 thirds of the amount at which the (Sess. Laws 1843, p. 139), under the property has been valued by apusual covenants of a mortgage, the praisers shall be bid therefor, is mortgagee, in default of payment, within the clause of the 10th seccould enter the premises, sell them tion of the 1st article of the Constiat public auction, retain the amount tution of the United States, which due, and pay the surplus to the prohibits a state from passing a law mortgagor. In Mundy v. Monroe, 1 impairing the obligation of conMich. 68, the mortgage involved was tracts.” given prior to the enactment of the Having reference to the contenstatute which gave time for redemp- tion that the statute affected only tion. It was contended that the act, - the remedy, it was said by the chief so far as it applied to mortgages ex- justice, speaking for the court: ecuted before its enactment, was un

"Whatever belongs merely to the constitutional, in that it impaired remedy may be altered according to the obligation of contract. The the will of the state, provided the opinion fully considers the question alteration does not impair the obliand sustains the contention. The gation of the contract. But if that case was followed in Blackwood v. effect is produced, it is immaterial Van Vleet, 11 Mich. 252. In Cargill whether it is done by acting on the v. Power, 1 Mich. 369, the mortgage remedy or directly on the contract

. was given when the law permitted itself. In either case it is prohibited redemption within two years (Act by the Constitution.” 40, Laws 1844, § 6); when it was He also said: "So, also, the foreclosed the law had been changed rights of the mortgagee, as known by making the period of redemp- to the laws, required no express

, tion one year (chapter 130, § 11, stipulation to define or secure them. Rev. Stat. 1846). It was

held They were annexed to the contract that the act, so far as applica- at the time it was made, and formed a part of it; and any subsequent law without impairing the obligation of impairing the rights thus acquired his contract. I think, therefore, impairs the obligations which the that the 3d section of the Law of contract imposed."

1852 was void, as a violation of the In Barnitz v. Beverly, 163 U. S. contract with the purchaser.” 118, 41 L. ed. 93, 16 Sup. Ct. Rep. In Hull v. State, 29 Fla. 79, 16 1042, the same court had before it L.R.A. 308, 30 Am. St. Rep. 95, 11 a similar question. The state of .

So. 97, a similar statute was before Kansas enacted a statute giving the the court, and it was there said: mortgagor eighteen months after "By the contract right to a deed it sale in which to redeem. The state was intended and implied that, upon court had construed the statute to obtaining the deed, he should have apply to existing mortgages, and as the immediate right to the ownerso construed sustained its validity. ship and exclusive possession and In reversing the decision of the Kan- use of the land, with all the benesas supreme court, the court re- ficial incidents of such ownership. viewed the authorities at some This right to have a deed after the length, and held: “Without pursu- 5th day of August, 1891, and the ing the subject further, we hold that rights incident thereto, were obligaa statute which authorizes the re- tions of the contract, and to postdemption of property sold upon pone against the will of the purforeclosure of a mortgage, where no chaser, or of his assignee, the enjoyright of redemption previously ex- ment of such rights for even a day, isted, or which extends the period of or the shortest period, to say nothredemption beyond the time former- ing of a period of nearly two years, ly allowed, cannot constitutionally and this too for the purpose of offerapply to a sale under a mortgage ing to the owner, or a creditor, durexecuted before its passage.

ing the time, the privilege of redeemIn Robinson v. Howe, 13 Wis. 341, ing, if he shall see fit to exercise it, the court had before it a statute ex- is a vital and patent impairment of tending the time for redemption such obligation." from a tax sale, It was there

See also Merrill v. Dearing, 32 said: “But the rights of the

Minn. 479, 21 N. W. 721; Dikeman purchaser stand upon a different

v. Dikeman, 11 Paige, 484; State ex footing. They are derived from

rel. Waldo v. Fylpaa, 3 S. D. 586, 54 the contract, which the law author

N. W. 599; Forqueran v. Donnally, ized to be made. He contracted

7 W. Va. 114; Solis v. Williams, 205 at the sale for a deed of the kind which the law then authorized him

Mass. 350, 91 N. E. 148; Groves v. to contract for. That was an abso

Keene, 105 Ark. 40, 150 S. W. 575; lute deed at the end of three years,

Smith v. Spillman, 135 Ark. 279, 1 liable to be defeated only by a re

A.L.R. 136, 205 S. W. 107; State ex demption before it was recorded. It rel. Stieff v. Bradshaw, 39 Fla. 137, seems to me clear, therefore, that 22 So. 296; Green .v. Biddle, 8 when the Law of 1852 said he should Wheat. 1, 5 L. ed. 547; note in 1 not have such a deed, but should A.L.R. 143. take one liable to be defeated by a Gault's Appeal, 33 Pa. 94, relied redemption at any time within a upon by defendants' counsel, holds year after it was recorded, it direct- to the contrary; but it is so out of ly impaired the obligation of the line with the overwhelming weight contract. I think it might just as of authority that we decline to folwell provide that, instead of any low it. Curtis v. Whitney, 13 Wall. deed, he should take a lease for 68, 20 L. ed. 513, cited by this court years. The answer in either case is, in the Weller Case, involved. like that the thing given is different that case, a statute which did not from what he contracted for, and extend the time of redemption, and, the law cannot compel him to take it like the Welder Case, is distin(229 Mich. 241, 201 N. W. 227.) guished from the case at bar. Vance city, by the provisions of the new v. Vance, 108 U. S. 514, 27 L. ed. charter, attempted to change the 808, 2 Sup. Ct. Rep. 854, involved terms of the contracts by providing the constitutional and statutory pro- that they should not have the deeds visions of the state of Louisiana, re- or leases at the end of a year, but quiring the recording of mortgages not until the end of eighteen months, and the effect of failure to record as and then only on their complying to third persons. The provisions with requirements which formed no did not attempt to affect the rights part of the original of the parties inter se or in any way

Constitutional contracts, the city

law-extending change their liabilities. It did not

It did not attempted to impair time for securin any way impair the obligations of the obligation of obligation of the parties.

the contracts. We When plaintiff's assignors bid at are therefore constrained to hold the tax sales, and their bids were that, as to sales made prior to the accepted, and they paid the amount time the new charter took effect, the thereof and received their certifi- provisions under consideration are cates of sale, they each made a con- invalid. This gives the new charter tract with the city, and the provi- a prospective effect only, and presion of the then charter that they serves the contract rights of those should be entitled to deeds, or leases, who bought before its adoption. at the end of one year, became a The judgment will be affirmed, part of the contracts. When the with costs.



Constitutionality of statute extending period for redemption from judicial or

tax sale, or sale upon mortgage foreclosure.


This annotation is supplementary that a statute extending the period to one on the same point in 1 A.L.R. for redemption from mortgage sales 143.

from one year to one year and ten The later decisions herein reviewed days could not constitutionally be apadhere to the rule stated in such plied to mortgages executed prior to earlier annotation that a law extend- its enactment. ing the time for redemption from a The rule that a statute extending judicial or tax sale, or giving such a the time to redeem from a tax sale right where none before existed, can- is not constitutionally applicable to not constitutionally be given a retro- sales made before its enactment is active operation.

subject to an exception where the state Thus, in Pace v. Wight (1918) 25 itself, some other government N. M. 276, 181 Pac. 430, it is stated agency, is the purchaser at the sale, that where a tax-sale certificate is as the extension of the time in that held by a private individual the pur- case is not a violation of a contract chaser has a vested right to a deed at right, but an act of grace.

Pace v. the time specified in the law under Wight (N. M.) supra. which the purchase was made; and It is to be noted, however, that this the legislature cannot subsequently exception does not extend to a case extend the period of redemption, as where the governmental agency has such extension would be an impair- assigned the certificate originally isment of the obligation of the contract. sued to it to a private individual,

See also, to the same effect, the re- prior to the time when the statute ported case (ROTT V. STEFFENS, ante, extending the time for redemption 224).

took effect. See annotation in 1 So, also, in State v. Hurlburt (1919) A.L.R. at page 145. 93 Or. 34, 182 Pac. 169, it was held Conversely, such a statute is not un

constitutional as to an assignee of a tax certificate who became such after the statute had gone into effect. Warner v. Hinshaw (1919) 105 Kan. 724, 185 Pac. 1041.

It may be of interest in this connection to note that it has been held in Conley V. Barton (1923) 260 U. S. 677, 67 L. ed. 456, 43 Sup. Ct. Rep. 238, affirming (1921) 119 Me. 581, 112 Atl. 670, that a statute requiring the mortgagee, within three months after expiration of the year allowed for redemption, to record an affidavit set

ting forth the facts of the foreclosure, which is to be a condition upon which the validity of the foreclosure depends, does not unconstitutionally impair a provision in an existing mortgage that the right to redeem shall be forever foreclosed in one year after the commencement of the foreclosure, its effect being not to prolong the period of redemption, but merely to alter the mode of procedure by imposing a condition noncompliance with which will render an attempted foreclosure ineffectual.

E. S. 0.

DOROTHY COLLINS et al., Plffs. in Err.,


Ohio Supreme Court April 8, 1924.

(110 Ohio St. 105, 143 N. E. 561.) Wills, $ 107 - effect of destruction of codicil.

1. Where several items of a will have been specifically revoked by a codicil and the codicil afterwards destroyed at the testator's direction, the items of the will so revoked cannot be revived by parol declarations of testator to others than the original attesting witnesses to the will, who do not subscribe as witnesses to the will.

[See note on this question beginning on page 244.] Wills, $ 107 — revocation revivor. the client, preclude him, in a pro

2. To constitute a valid revivor of ceeding to contest the will or coda revoked will, under $ 10,562, Gen- icil of his client, from testifying eral Code, the testator must acknowl- to matters which he must necessaedge the instrument to be his last will rily have learned by communications before the witnesses who have already from his client, and to matters that signed his will, or, if before other wit- relate directly to communications nesses, then these witnesses must sign made and advice given while the relathe will at the request of the testator; tion of attorney and client existed. or testator and two witnesses must He is not, however, precluded from sign some other written instrument testifying, the same as any other witshowing such intent; or such testator ness might, when he is a subscribing must republish his will with the same witness to such will or codicil. formalities as attended its original [See 28 R. C. L. 553 et seq.; 5 execution and publication.

R. C. L. Supp. 1546.] [See 28 R. C. L. 194; 4 R. C. L. Supp.

Wills, $ 22 — testamentary capacity. 1804.]

4. In a will contest it is proper for Evidence, $ 1012 - of attorney — will

a jury, in reaching a conclusion touchcontest. 3. The terms of $ 11,494, General

ing the testamentary capacity of the Code, preventing an attorney from

testator, to consider evidence with testifying concerning communications reference to the age of the testator made to him by his client in that and the mental and physical condition relation, or concerning his advice to at the time of the execution of the in

Headnotes by the COURT.

(110 Ohio St. 105, 143 N. E. 561.) strument in question, his habits, asso- bearing upon the question whether, ciations, his relations to the parties at the time of the execution of the interested, his affections toward them, will or codicil in question, the testatheir claim upon his bounty, the char- tor possessed sufficient mental capacacter and extent of his property, the ity to make the same, and was not disposition made of it by his will or under any restraint, and was able to codicil, and whether such disposition form a purpose and intent to dispose was a reasonable and natural one, as of property by will.

ERROR to the Court of Appeals for Allen County to review a judgment reversing a judgment of the Court of Common Pleas in favor of plaintiffs in an action brought to contest the validity of the will of Samuel Collins, deceased. Affirmed. Statement by Day, J.:

second, that his second codicil was This case comes into this court on itself torn from the will in July, petition in error from the court of 1919, and destroyed by the testator appeals of Allen county.

or by his direction, with the intenIn the opinion of the court of ap- tion to revoke the same; and, third, peals, a copy of which is attached to that at the time of the revocation the brief of plaintiffs in error, a and destruction of said codicil her very clear and brief statement of great-grandfather did not in any the matters in issue in the trial manner revive the original will and court and in the court of appeals is did not republish the same. set forth, in the following language: “The defendants in the court of

“This action was begun in the common pleas denied that Samuel court of common pleas by Dorothy Collins had ever executed a second Collins to contest the validity of the

codicil containing the provisions last will and testament of her great claimed by the plaintiff, and congrandfather, Samuel Collins, de

tended that if he had executed such ceased. While it is a proceeding to codicil he did not at the time have contest the validity of a will, the

sufficient mental capacity and was action had some peculiar features. unduly influenced thereto. They The plaintiff in the common pleas further contended that at the time court does not contend that her

of the cancelation and revocation of great-grandfather was, at the time

the second codicil the testator unof the execution of the original will, equivocally showed an intention, by nor at the time of the execution of

the terms of the revocation, to reeither codicil thereto, of unsound vive and give effect to his first will, mind or unduly influenced, nor un

and they insist that, therefore, the der any restraint, nor that any one

original will is still in full force of the instruments was not duly ex

and effect. ecuted. What she really seeks to ac

“The estate involved amounts apcomplish by her action is to secure a judicial determination that items proximately to $200,000, and upon 6, 8, 9, 10, and 11 of the original

the issue as above stated the parties will have been revoked and are no

went to trial, and the evidence is set longer in effect, and that therefore

forth in a bill of exceptions embracher great-grandfather died intes ing some 1,600 pages. The trial retate except as to certain specific sulted in a verdict in favor of the legacies in other items of the will. plaintiff Dorothy Collins, finding She seeks to accomplish this by es- that the paper writing purporting tablishing: First, that on May 20, to be his will was not the valid last 1919, he duly executed a second will and testament as to items 6, 8, codicil which, by specific provisions 9, 10, and 11 of said will." contained therein, revoked the items The original will and codicils above named of the original will; thereto are as follows:

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