The opinion
WILSON, Chief Justice
(concurring).
I concur in all that Mr. Justice Holt has written. In addition thereto it seems to me that L. 1933, p. 514, c. 339, does little more than merely transfer our statutory foreclosure by advertisement into a foreclosure by action wherein the court has equitable powers to do substantially all the things which this act authorizes the court to do. Suring State Bank v. Giese, 210 Wis. 489 , 246 N. W. 556 .
This statute subjects the mortgagee to the rules of equity, but it also exacts equity in turn from the mortgagor as a condition under which he may have a longer time in which to redeem. If the mort
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gagor gets an extension of time in which to redeem he is required substantially to protect the mortgagee from loss by reason thereof. This he ought to do. While it temporarily protects the mortgagor from a loss of his title and a deficiency judgment, it takes so little away from the mortgagee that it cannot be said to invoke an unreasonable application of the police power, and under the authorities cited in State ex rel. Lichtscheidl v. Moeller, 189 Minn. 412 , 249 N. W. 330 , I am of the opinion that the statute should be sustained. Where the police power is involved we must all give. We cannot all receive only.
In my judgment every citizen should be encouraged in the spirit of achievement. If he is to be deprived of the happiness and satisfaction which he may find in achievements he becomes less useful to the community and society. Man is ambitious better to provide for those who by nature or law are dependent upon or entitled to his bounty. The law should protect him in his accumulations. It is best that the rash of ambition may develop on every person. If so, the public is interested in the solvency and prosperity of the people. It follows that it is detrimental to the public interest for our people to lose their valuable lands, improved or unimproved, at a time when the banks are closed and when it is impossible to find anyone who will make a mortgage loan. Funds are simply not available regardless of the security offered. The plight of the landowner has been enhanced because of the depreciation in land values resulting in many cases in the land being worth less than the mortgage. In such case the mortgagor can have no legislative help. Conditions are abnormal. To this situation the banks, acting under governmental requirements, have contributed by calling for liquidation to strengthen their own reserves.
As a rule mortgagees want their money, not land. Most of the real estate mortgages existing today were contracted when the general price level was about twice, and the farm values about four times, as high as today. It is estimated that mortgage foreclosures in the last three years aggregate about half a million in number. Farm mortgage debts amount to about nine billion dollars. But
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in comparison to the number of defaults the number of foreclosures has not been large. There are authorities which in substance hold that “hard times” or “stormy weather” afford no basis for disturbing normal procedure. 42 Yale L. J. 960; 3 Jones, Mortgages (8 ed.) §§ 1583, 1695-1746. Perhaps we might find that Barnitz v. Beverly, 163 U. S. 118 , 16 S. Ct. 1042 , 41 L. ed. 93, so held. But as time marched on that court later, in Block v. Hirsh, 256 U. S. 135 , 41 S. Ct. 458 , 65 L. ed. 865, 16 A. L. R. 165, and Marcus Brown H. Co. Inc. v. Feldman, 256 U. S. 170 , 41 S. Ct. 465 , 65 L. ed. 877, established a modern judicial doctrine. Indeed the opinion in Barnitz v. Beverly, 163 U. S. 118 , 16 S. Ct. 1042 , 41 L. ed. 93, does not disclose the “stormy weather” then existing in Kansas, and it does not show that counsel even suggested that the statute was valid under the police power. There has always been a development in judicial construction to meet new and changing conditions, and Barnitz v. Beverly, 163 U. S. 118 , 16 S. Ct. 1042 , 41 L. ed. 93, has been succeeded by the cases mentioned. As said by Mr. Chief Justice Greene in Hodges v. New England Screw Co. 1 R. I. 312, 356:
“The law is progressive and expansive, adapting itself to the new relations and interests which are constantly springing up in the progress of society.”
The mortgagee is entitled to some protection during the interim of the extension, and this statute gives him that protection. These laws have been enacted in several of the
states;
and, while all courts do not agree, the modern judicial doctrine seems to sustain such legislation. An interesting and helpful discussion is found in 42 Yale L. J. 1236.
In considering what may be done under a statute we must presume that all courts will properly perform their duties.
Mortgagees have little to fear from this particular statute. Few of them would wish to deprive the mortgagor of an opportunity of getting his property out of a burning house. I insist that the courts can do very little for the mortgagor under this statute. The legislature so intended. If it had provided no compensation or protection incident to the extension I would have agreed to the conclusion
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reached by the North Dakota court. - I would then think the application of the police pwer was unreasonable. Our legislature acted cautiously and yet probably went as far as it could. In my judgment this statute is not a violation but a vindication of our form of constitutional government.