Dennis v. Moses

Dunbar, J.,

(dissenting).—I am reluctantly compelled-to dissent in part at least from the majority opinion in this case. So far as the proposition of appraisement is concerned I am forced to the opinion that the law should be held to be -of no force or effect by reason of its incongruities and contradictory provisions. Section 10 (Bal. Code, § 5281) provides that no property shall be sold for a sum less than eighty per cent, of the appraised value thereof except that when property is not capable of partition or division then the same may be sold for the amount of the judgment debt or demand. The same section further provides that when the property is capable of partition then so much thereof as may be sufficient only shall be sold as will satisfy the judgment; and the further provision of the same section is, in case of foreclosure of mortgages or other liens nothing shall prevent the sale of the entire premises included within the mortgage' or lien. It will thus be seen that the second and third provisions of the section are irreconcilably conflicting, for one provides that so much only of the property as may be sufficient to satisfy the judgment shall be sold, while the next sentence as clearly declares that nothing shall prevent the sale of the entire premises included within the mortgage or lien. I heartily concur in all that is said in the majority opinion concerning the relations existing between courts and legislatures, but when the legislature enacts a law the provisions of which are absolutely conflicting within themselves, then I think it becomes as much the duty of the court to *582 hold the law ineffectual for any purpose as it does to hold the law unconstitutional when it plainly violates a constitutional provision. The section which I have quoted is only one example of the conflicting provisions of this law, if we hold that it applies to mortgages and not to execution sales alone; and an attempt to exempt mortgages from the operation of the bill is rendered as unsuccessful by reason of the provisions in succeeding and preceding sections. There are no rules of statutory construction or of logic which can be brought to bear in construing a statute of this kind. It simply becomes a question of guessing as to what was the intention of the legislature, if indeed it does not go further and compel judicial legislation, which is always to be avoided. This is shown by the majority opinion, which was announced after many weeks of painstaking labor, coupled with an earnest endeavor to bring order out of confusion, and to give some effect to the legislative act. But I think the effort, devoted and praiseworthy as it was, has failed, and that the announcement is really the best judgment of the majority of what the law ought to be, a result which, in my opinion, could not be avoided under an attempt to sustain this law, and I think as a matter of public policy it is far better that the laws enacted by former legislators, who were the proper law-making powers, should be held to be the laws governing transactions of this kind than a law which is the result of judicial judgment and announcement. I have read with interest the masterly presentation made by the majority on the deficiency judgment law, but am still constrained to believe that on that subject the legislature had a right to act, and that it did act within the scope of its constitutional powers, and, believing that it is a provision which cannot be waived, I think the law should be sustained. I am also of the opinion that the statute in relation to possession cannot be abro *583 gated or modified by tbe courts, neither do I think it is a provision that can be waived. The majority opinion expresses my views on the money proposition.