Opinion
No. 29399
Decided June 9, 1943.
Execution — Limitation of life of deficiency judgment in foreclosure of realty mortgage — Section 11663-1, General Code — Writ of execution a civil proceeding — No vested right in existing remedy — Constitutional prohibition against retroactive laws, not violated — Contractual obligations not impaired by statute.
1. Section 11663-1, General Code, effective August 19, 1937, is in effect a statute of limitation upon the life of a deficiency judgment arising from the foreclosure of a mortgage on real property upon which there has been located a dwelling for not more than two families and which has been used in whole or in part as a home or homestead by the mortgagor, with certain exceptions to the operation of the statute therein specifically provided.
2. A writ of execution as distinguished from a mere levy on real property is a civil proceeding for the enforcement of a judgment against such property. It is issued by the clerk and directed to the sheriff commanding him to seize or take possession of property and to sell it in the manner provided by law for the satisfaction of judgments.
3. As a general rule there is no vested right in an existing remedy and a statute may alter, modify or curtail an existing remedy provided a reasonable time is given for the assertion of such remedy.
4. Section 11663-1, General Code (117 Ohio Laws, 515), prescribing a limit upon the life of a deficiency judgment arising out of a foreclosure of a motgage on residence property used as a homestead, and allowing two years after the effective date of the statute for the issuance of an execution on a judgment obtained prior to such effective date, does not violate any constitutional prohibition against the enactment of retroactive laws.
5. Such a statute does not operate to produce an unconstitutional impairment of contractual obligations entered into and merged in a judgment before the effective date of the statute.
APPEAL from the Court of Appeals of Ashland county.
Olive Mann owned a farm in Jackson township, Ashland county, Ohio, which, prior to October 1, 1927, she had mortgaged to the Aetna Life Insurance Company. On that date, she sold this farm to Joseph H. and Anna E. Lash, who assumed the mortgage as a part of the purchase price of the farm. As a further part consideration, the Lashes gave Olive Mann a note and second mortgage for $1,363.22, payable 10 years after date, but providing for a payment of $200 on the principal after five years from date. On this land was located a one-family house which the Lashes held and occupied as a homestead.
On February 6, 1931, the Aetna Life Insurance Company brought suit against Joseph H. Lash and Anna E. Lash on its note and mortgage, seeking a personal judgment and foreclosure of its mortgage. Olive Mann was made a party defendant to this action, which required her to set out her interest by way of mortgage on the premises described in the petition. On March 14, 1931, the court entered a default decree against all the defendants in favor of the plaintiff insurance company and continued the cause as to all other issues raised by the petition and not disposed of by the decree of foreclosure.
On April 6, 1931, after the issuance of an order of sale, but before sale, the defendant Olive Mann filed a cross-petition setting up her note and mortgage which Joseph H. Lash and Anna E. Lash had given to her, in which cross-petition she prayed for a judgment, a sale of the premises, and payment of her claim out of the proceeds of sale.
The property in question was sold and all order of confirmation was entered on April 27, 1931. Distribution was made on the first mortgage and a deficiency judgment was awarded to the plaintiff insurance company for the balance of its claim in the sum of $58.60. On May 12, 1931, after the judicial sale, and after its confirmation, the defendant Olive Mann was awarded a decree and judgment on her note and mortgage against Joseph H. Lash and Anna E. Lash in the sum of $1,660.
On May 15, 1931, an execution was issued on the Mann judgment and a levy was made thereunder on 80 acres of land in Orange township, Ashland county, Ohio, in which Joseph H. Lash and Anna E. Lash owned a remainder interest, the life tenant being Hulda Richards. This property was at no time the sequently, paper or office levies were made under the homestead of Joseph H. Lash or Anna E. Lash. Subsame judgment upon the same premises in the years 1932, 1933, 1934, and on March 23, 1938, but no proceedings were prosecuted to subject the premises to sale under any of these levies.
On February 6, 1941, the petition in this case was filed by Anna E. Lash as administratrix of the estate of Joseph H. Lash, Anna E. Lash individually, and the heirs at law of Joseph H. Lash, against Olive Mann and another in the Common Pleas Court of Ashland county to quiet the title to the 80-acre tract of land in Orange township above referred to, alleging that no attempt was made by Olive Mann to make any money on the several levies made by her upon such premises and that there was no execution, action to marshal liens, or any proceedings pending to collect the judgment; that no action was taken to collect the judgment prior to August 19, 1939; and that the judgment had become unenforceable by virtue of the provisions of Section 11663-1 of the General Code of Ohio, but that the judgment remained uncancelled and unsatisfied of record.
An answer was filed by Olive Mann setting up the facts regarding her judgment against Joseph H. Lash and Anna E. Lash, and praying that it be found to be a valid first lien upon the premises. A decree was entered for the plaintiffs in the Common Pleas Court, and on appeal on questions of law and fact a like decree was entered by the Court of Appeals in favor of the plaintiffs.
The case is now in this court for review by reason of the allowance of a motion to certify the record.
Mr. Howard S. Lutz, for appellees.
Mr. C.W. Chorpening and Messrs. Young Young, for appellant.
The problem presented by the record in this case requires an interpretation of Section 11663-1, General Code, as enacted and effective August 19, 1937 (117 Ohio Laws, 515). A condensed summary of the pertinent provisions of this section as then existing in words of the statute itself, is as follows:
"Any judgment for money rendered in a court of record in this state upon any indebtedness, which is secured or evidenced by a mortgage * * * on real property * * * upon which * * * there has been located a dwelling * * * for not more than two families which has been used in whole or in part as a home or farm dwelling or held as a homestead by the person who executed * * * such mortgage * * * or which has been held by such person as a homesite, shall become null and void at the expiration of two years from the date of such judgment or of the effective date of this act, whichever shall be later. Provided, however, that any execution issued upon such judgment * * * commenced within two years from the date of such judgment or from the effective date of this act, whichever shall be later, or commenced prior to the effective date of this act, shall not be affected by this section * * *."
This section of the statute is in effect a statute of limitation upon the life of a deficiency judgment arising from the foreclosure of mortgages on real property upon which there has been located a dwelling for not more than two families and which has been used in whole or in part as a home or a homestead by the mortgagor, with certain exceptions to the operation of the statute therein specifically provided.
There is no question or dispute that defendant Olive Mann claims under a deficiency judgment. However, she claims that her judgment is not within the operation of the statute, or rather is saved by a proviso of the statute in that she had issued on her judgment a valid execution prior to and at the time of the effective date of the statute which judgment is saved by the provision "that any execution issued upon such judgment * * * commenced within two years * * * from the effective date of this act * * * or commenced prior to the effective date of this act, shall not be affected by this section." She claims as an alternative that if this be not true, the statute as it affects her judgment is unconstitutional and void as destroying a vested right.
The plaintiffs claim that since Olive Mann did not enforce her judgment or have pending all execution to enforce it prior to August 19, 1939, the judgment became null and void and is now but a cloud upon plaintiffs' title which should be removed.
This phase of the controversy appears to arise because of a failure to distinguish between the preservation of a judgment lien and the pendency of an execution on a judgment. The defendant Olive Mann, by paper or office levies, kept her judgment as a lien from becoming dormant, but did she have an execution on this judgment pending at the expiration of two years from August 19, 1937, which alone would save its enforcement from the limitations of the statute? A writ of execution as distinguished from a mere levy on real property is a civil proceeding for the enforcement of a judgment against such property. It is issued by the clerk and directed to the sheriff commanding him to seize or take possession of property and to sell it in the manner provided by law for the satisfaction of judgments. See Sections 11664, 11666, 11672, 11675, 11678, 11681 and 11688, General Code.
That such a proceeding is contemplated and required by the statute is evident from the context which provides that an execution issued upon such judgment must be commenced prior to the expiration of the limitation period. This also presupposes that a proceeding commenced is followed through by sale of the property, or the remedy provided by the statute could be frustrated by repeated levies keeping the judgment alive indefinitely. It is clear from the record in this case that no such execution had been commenced within the period of limitation and that the enforcement of the judgment was thereafter barred by the statute.
The defendant Olive Mann further claims that insofar as the statute applies to her judgment which was obtained on May 12, 1931, before the statute was originally enacted, and which judgment has been kept in force and effect by appropriate levies, the statute is void because it retroactively destroys a vested right or lien in contravention of the Fourteenth Amendment of the federal Constitution and Sections 2 and 19 of Article I and Section 28 of Article II of the Constitution of Ohio.
It is a general rule that there is no vested right in an existing remedy ( Lawrence Rd. Co. v. Commrs. Of Mahoning County, 35 Ohio St. 1), and that a statute subsequently passed may alter, modify or curtail such remedy provided a reasonable time is given for the assertion of the remedy. Montalto v. Yeckley, 138 Ohio St. 314, 319, 34 N.E.2d 765; State, ex rel. Slaughter, v. Industrial Commission, 132 Ohio St. 537, 9 N.E.2d 505; Smith v. New York Central Rd. Co. 122 Ohio St. 45, 170 N.E. 637; Bartol v. Eckert, 50 Ohio St. 31, 33 N.E. 294; Terry v. Anderson, 95 U.S. 628, 24 L. Ed., 365.
It is the opinion of this court that Section 11663-1, General Code (117 Ohio Laws, 515), prescribing a limit upon the life of a deficiency judgment arising out of a foreclosure of a mortgage on residence property used as a homestead, and allowing two years after the effective date of the statute for the issuance of un execution on a judgment obtained prior thereto, does not violate any constitutional prohibition against the enactment of retroactive laws, and that such statute does not operate to produce an unconstitutional impairment of contractual obligations entered into and merged in a judgment before the effective date of the statute.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, ZIMMERMAN, BELL and TURNER, JJ., concur.
WILLIAMS, J., not participating.