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(229 Mich. 241, 201 N. W. 227.)

contract, and such change is void as impairing its obligation."

Ruling Case Law, speaking on this subject (26 R. C. L. p. 434), says: "The sale of land for delinquent taxes constitutes a contract between the purchaser and the state, the obligation of which cannot be impaired to the disadvantage of the purchaser by subsequent legislation. The purchaser is entitled to insist that, as to matters of substance pertaining to the interest acquired by him and the right of redemption remaining in the owner, the law in force at the time of the sale shall govern."

And 12 C. J. 1002 thus states the rule: "The law in force at the time a tax sale is made becomes a part of the purchaser's contract, and any subsequent statute which attempts to deprive him of any substantial right secured to him by the existing law is void as impairing the obligation of contracts.'

Some of the early cases in this court are, we think, by analogy, applicable. Prior to Act 62 of 1843 (Sess. Laws 1843, p. 139), under the usual covenants of a mortgage, the mortgagee, in default of payment, could enter the premises, sell them at public auction, retain the amount due, and pay the surplus to the mortgagor. In Mundy v. Monroe, 1 Mich. 68, the mortgage involved was given prior to the enactment of the statute which gave time for redemption. It was contended that the act, so far as it applied to mortgages executed before its enactment, was unconstitutional, in that it impaired the obligation of contract. The opinion fully considers the question and sustains the contention. The case was followed in Blackwood v. Van Vleet, 11 Mich. 252. In Cargill v. Power, 1 Mich. 369, the mortgage was given when the law permitted redemption within two years (Act 40, Laws 1844, § 6); when it was foreclosed the law had been changed by making the period of redemption one year (chapter 130, § 11, Rev. Stat. 1846). It was held that the act, so far as applica

ble to mortgages executed before its enactment, was unconstitutional; that the law at the time of the making of the mortgage became a part of the contract, which could not be impaired by subsequent legislation. These cases, we think, demonstrate that a change in the period of redemption is not a change in the remedy, but is a change affecting the substantial rights of the parties. The importance of the question before us, however, impels consideration of cases from other jurisdictions.

In Bronson v. Kinzie, 1 How. 311, 11 L. ed. 143, the court had before it a statute of the state of Illinois having reference to the foreclosure of mortgages, and it was there held (we quote the syllabus): "A state law passed subsequently to the execution of a mortgage, which declares that the equitable estate of the mortgagor shall not be extinguished for twelve months after a sale under a decree in chancery, and which prevents any sale unless two thirds of the amount at which the property has been valued by appraisers shall be bid therefor, is within the clause of the 10th section of the 1st article of the Constitution of the United States, which prohibits a state from passing a law impairing the obligation of contracts."

Having reference to the contention that the statute affected only the remedy, it was said by the chief justice, speaking for the court: "Whatever belongs merely to the remedy may be altered according to the will of the state, provided the alteration does not impair the obligation of the contract. But if that effect is produced, it is immaterial whether it is done by acting on the remedy or directly on the contract itself. In either case it is prohibited by the Constitution."

He also said: "So, also, the rights of the mortgagee, as known to the laws, required no express stipulation to define or secure them. They were annexed to the contract at the time it was made, and formed

a part of it; and any subsequent law impairing the rights thus acquired impairs the obligations which the contract imposed."

In Barnitz v. Beverly, 163 U. S. 118, 41 L. ed. 93, 16 Sup. Ct. Rep. 1042, the same court had before it a similar question. The state of Kansas enacted a statute giving the mortgagor eighteen months after sale in which to redeem. The state court had construed the statute to apply to existing mortgages, and as so construed sustained its validity. In reversing the decision of the Kansas supreme court, the court reviewed the authorities at some length, and held: "Without pursuing the subject further, we hold that a statute which authorizes the redemption of property sold upon foreclosure of a mortgage, where no right of redemption previously existed, or which extends the period of redemption beyond the time formerly allowed, cannot constitutionally apply to a sale under a mortgage executed before its passage."

In Robinson v. Howe, 13 Wis. 341, the court had before it a statute extending the time for redemption from a tax sale. It was there said: "But the rights of the purchaser stand upon a different footing. They are derived from the contract, which the law authorized to be made. He contracted at the sale for a deed of the kind which the law then authorized him to contract for. That was an absolute deed at the end of three years, liable to be defeated only by a redemption before it was recorded. It seems to me clear, therefore, that when the Law of 1852 said he should not have such a deed, but should take one liable to be defeated by a redemption at any time within a year after it was recorded, it directly impaired the obligation of the contract. I think it might just as well provide that, instead of any deed, he should take a lease for years. The answer in either case is, that the thing given is different from what he contracted for, and the law cannot compel him to take it

without impairing the obligation of his contract. I think, therefore, that the 3d section of the Law of 1852 was void, as a violation of the contract with the purchaser."

In Hull v. State, 29 Fla. 79, 16 L.R.A. 308, 30 Am. St. Rep. 95, 11 So. 97, a similar statute was before the court, and it was there said: "By the contract right to a deed it was intended and implied that, upon obtaining the deed, he should have the immediate right to the ownership and exclusive possession and use of the land, with all the beneficial incidents of such ownership. This right to have a deed after the 5th day of August, 1891, and the rights incident thereto, were obligations of the contract, and to postpone against the will of the purchaser, or of his assignee, the enjoyment of such rights for even a day, or the shortest period, to say nothing of a period of nearly two years, and this too for the purpose of offering to the owner, or a creditor, during the time, the privilege of redeeming, if he shall see fit to exercise it, is a vital and patent impairment of such obligation."

See also Merrill v. Dearing, 32 Minn. 479, 21 N. W. 721; Dikeman v. Dikeman, 11 Paige, 484; State ex rel. Waldo v. Fylpaa, 3 S. D. 586, 54 N. W. 599; Forqueran v. Donnally, 7 W. Va. 114; Solis v. Williams, 205 Mass. 350, 91 N. E. 148; Groves v. Keene, 105 Ark. 40, 150 S. W. 575; Smith v. Spillman, 135 Ark. 279, 1 A.L.R. 136, 205 S. W. 107; State ex rel. Stieff v. Bradshaw, 39 Fla. 137, 22 So. 296; Green v. Biddle, 8 Wheat. 1, 5 L. ed. 547; note in 1 A.L.R. 143.

Gault's Appeal, 33 Pa. 94, relied upon by defendants' counsel, holds to the contrary; but it is so out of line with the overwhelming weight of authority that we decline to follow it. Curtis v. Whitney, 13 Wall. 68, 20 L. ed. 513, cited by this court in the Weller Case, involved, like that case, a statute which did not extend the time of redemption, and, like the Welder Case, is distin

(229 Mich. 241, 201 N. W. 227.)

guished from the case at bar.

Vance v. Vance, 108 U. S. 514, 27 L. ed. 808, 2 Sup. Ct. Rep. 854, involved the constitutional and statutory provisions of the state of Louisiana, requiring the recording of mortgages and the effect of failure to record as to third persons. The provisions did not attempt to affect the rights of the parties inter se or in any way change their liabilities. It did not in any way impair the obligations of the parties.

When plaintiff's assignors bid at the tax sales, and their bids were accepted, and they paid the amount thereof and received their certificates of sale, they each made a contract with the city, and the provision of the then charter that they should be entitled to deeds, or leases, at the end of one year, became a part of the contracts. When the

Constitutional

city, by the provisions of the new charter, attempted to change the terms of the contracts by providing that they should not have the deeds or leases at the end of a year, but not until the end of eighteen months, and then only on their complying with requirements which formed no part of the original contracts, the city law-extending attempted to impair time for securthe obligation of obligation of the contracts. We are therefore constrained to hold that, as to sales made prior to the time the new charter took effect, the provisions under consideration are invalid. This gives the new charter a prospective effect only, and preserves the contract rights of those who bought before its adoption.

ing tax deed

contract.

The judgment will be affirmed, with costs.

ANNOTATION.

Constitutionality of statute extending period for redemption from judicial or tax sale, or sale upon mortgage foreclosure.

This annotation is supplementary to one on the same point in 1 A.L.R. 143.

The later decisions herein reviewed adhere to the rule stated in such earlier annotation that a law extending the time for redemption from a judicial or tax sale, or giving such a right where none before existed, cannot constitutionally be given a retroactive operation.

Thus, in Pace v. Wight (1918) 25 N. M. 276, 181 Pac. 430, it is stated that where a tax-sale certificate is held by a private individual the purchaser has a vested right to a deed at the time specified in the law under which the purchase was made; and the legislature cannot subsequently extend the period of redemption, as such extension would be an impairment of the obligation of the contract.

See also, to the same effect, the reported case (ROTT v. STEFFENS, ante, 224).

So, also, in State v. Hurlburt (1919) 93 Or. 34, 182 Pac. 169, it was held

that a statute extending the period for redemption from mortgage sales from one year to one year and ten days could not constitutionally be applied to mortgages executed prior to its enactment.

The rule that a statute extending the time to redeem from a tax sale is not constitutionally applicable to sales made before its enactment is subject to an exception where the state itself, or some other government agency, is the purchaser at the sale, as the extension of the time in that case is not a violation of a contract right, but an act of grace. Pace v. Wight (N. M.) supra.

It is to be noted, however, that this exception does not extend to a case where the governmental agency has assigned the certificate originally issued to it to a private individual, prior to the time when the statute extending the time for redemption took effect. See annotation in 1 A.L.R. at page 145.

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. O.

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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.]

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2. To constitute a valid revivor of a revoked will, under § 10,562, General Code, the testator must acknowledge the instrument to be his last will before the witnesses who have already signed his will, or, if before other witnesses. then these witnesses must sign the will at the request of the testator; or testator and two witnesses must sign some other written instrument showing such intent; or such testator must republish his will with the same formalities as attended its original execution and publication.

[See 28 R. C. L. 194; 4 R. C. L. Supp. 1804.]

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the client, preclude him, in a proceeding to contest the will or codicil of his client, from testifying to matters which he must necessarily have learned by communications from his client, and to matters that relate directly to communications made and advice given while the relation of attorney and client existed. He is not, however, precluded from testifying, the same as any other witness might, when he is a subscribing witness to such will or codicil.

[See 28 R. C. L. 553 et seq.; 5 R. C. L. Supp. 1546.]

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(110 Ohio St. 105, 143 N. E. 561.)

strument in question, his habits, associations, his relations to the parties interested, his affections toward them, their claim upon his bounty, the character and extent of his property, the disposition made of it by his will or codicil, and whether such disposition was a reasonable and natural one, as

bearing upon the question whether, at the time of the execution of the will or codicil in question, the testator possessed sufficient mental capacity to make the same, and was not under any restraint, and was able to form a purpose and intent to dispose 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.:

This case comes into this court on petition in error from the court of appeals of Allen county.

In the opinion of the court of appeals, a copy of which is attached to the brief of plaintiffs in error, a very clear and brief statement of the matters in issue in the trial court and in the court of appeals is set forth, in the following language:

"This action was begun in the court of common pleas by Dorothy Collins to contest the validity of the last will and testament of her greatgrandfather, Samuel Collins, deceased. While it is a proceeding to contest the validity of a will, the action had some peculiar features. The plaintiff in the common pleas court does not contend that her great-grandfather was, at the time of the execution of the original will, nor at the time of the execution of either codicil thereto, of unsound mind or unduly influenced, nor under any restraint, nor that any one of the instruments was not duly executed. What she really seeks to accomplish by her action is to secure a judicial determination that items 6, 8, 9, 10, and 11 of the original will have been revoked and are no longer in effect, and that therefore her great-grandfather died intestate except as to certain specific legacies in other items of the will. She seeks to accomplish this by establishing: First, that on May 20, 1919, he duly executed a second codicil which, by specific provisions contained therein, revoked the items above named of the original will;

second, that his second codicil was itself torn from the will in July, 1919, and destroyed by the testator or by his direction, with the intention to revoke the same; and, third, that at the time of the revocation and destruction of said codicil her great-grandfather did not in any manner revive the original will and did not republish the same.

"The defendants in the court of common pleas denied that Samuel Collins had ever executed a second codicil containing the provisions claimed by the plaintiff, and contended that if he had executed such codicil he did not at the time have sufficient mental capacity and was unduly influenced thereto. They further contended that at the time of the cancelation and revocation of the second codicil the testator unequivocally showed an intention, by the terms of the revocation, to revive and give effect to his first will, and they insist that, therefore, the original will is still in full force and effect.

"The estate involved amounts approximately to $200,000, and upon the issue as above stated the parties went to trial, and the evidence is set forth in a bill of exceptions embracing some 1,600 pages. The trial resulted in a verdict in favor of the plaintiff Dorothy Collins, finding that the paper writing purporting to be his will was not the valid last will and testament as to items 6, 8, 9, 10, and 11 of said will."

The original will and codicils thereto are as follows:

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