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ferred to another, either through the exercise of a statutory power, or by the direct force of their judgments or decrees, or by means of compulsory conveyances. If in these cases the courts have jurisdiction, they proceed in accordance with “ the law of the land ;” and the right of one man is devested by way of enforcing a higher and better right in another. Of these cases we do not propose to speak : constitutional questions cannot well arise concerning them, unless they are attended by circumstances of irregularity which are supposed to take them out of the general rule. All vested rights are held subject to the laws for the enforcement of public duties and private contracts, and for the punishment of wrongs; and if they become devested through the operation of those laws, it is only by way of enforcing the obligations of justice and good order. What we desire to reach in this connection is the true meaning of the term “ vested rights” when employed for the purpose of indicating the interests of which one cannot be deprived by the mere force of legislative enactment, or by any other than the * recognized modes of transferring title [* 359] against the consent of the owner, to which we have alluded.
Interests in Expectancy.
And it would seem that a right cannot be regarded as a vested right, unless it is something more than such a mere expectation as may be based upon an anticipated continuance of the present general laws: it must have become a title, legal or equitable, to the present or future enjoyment of property, or to the present or future enforcement of a demand, or a legal exemption from a de. mand made by another. Acts of the legislature, as has been well said by Mr. Justice Woodbury, cannot be regarded as opposed to fundamental axioms of legislation, “ unless they impair rights which are vested; because most civil rights are derived from public laws; and if, before the rights become vested in particular individuals, the convenience of the State procures amendments or repeals of those laws, those individuals have no cause of complaint. The power that authorizes or proposes to give, may always revoke before an interest is perfected in the donee.” And Chancellor Kent, in speaking of retrospective statutes, says that while
1 Merrill v. Sherburne, 1 N. H. 213. See Ride v. Flanders, 39 N. H. 304.
such a statute, “affecting and changing vested rights, is very generally regarded in this country as founded on unconstitutional principles, and consequently inoperative and void,” yet that “this doctrine is not understood to apply to remedial statutes, which may be of a retrospective nature, provided they do not impair contracts, or disturb absolute vested rights, and only go to confirm rights already existing, and in furtherance of the remedy by curing defects and adding to the means of enforcing existing obligations. Such statutes have been held valid when clearly just and reasonable, and conducive to the general welfare, even though they might operate in a degree upon vested rights.” 1
And it is because a mere expectation of property in the future is not considered a vested right, that the rules of descent are held subject to change in their application to all estates not already passed to the heir by the death of the owner. No one is heir to the living; and the heir presumptive has no other reason to rely
upon succeeding to the property than the promise held out [* 360] by the statute of descents. But this promise is no * more
than a declaration of the legislature as to its present view of public policy as regards the proper order of succession, - a view
which may at any time change, and then the promise may properly be withdrawn, and a new course of descent be declared. The expectation is not property ; it cannot be sold or mortgaged; it is not subject to debts; and it is not in any manner taken notice of by the law until the moment of the ancestor's death, when the statute of descents comes in, and for reasons of general public policy transfers the estate to persons occupying particular relations to the deceased in preference to all others. It is not until that moment that there is any vested right in the person who becomes heir, to be protected by the Constitution. An anticipated interest in property cannot be said to be vested in any person so long as the owner of the interest in possession has full power, by virtue of his ownership, to cut off the expectant right by grant or devise.?
If this be so, the nature of estates must, to a certain extent, be
11 Kent, Com. 455. See Briggs v. Hubbard, 19 Vt. 91 ; Bridgeport o. Housatonic R. R. Co., 15 Com. 492; Baugher v. Nelson, 9 Gill, 299; Gilman v. Cutts, 23 N. H. 382.
? In re Lawrence, 1 Redfield, Sur. Rep. 310. But after property has once vested under the laws of descent, it cannot be divested by any change in those laws. Norman v. Heist, 5 M. & S. 171. See post, 379, and notes.
subject to legislative control and modification. In this country estates tail have been very generally changed into estates in feesimple, by statutes the validity of which is not disputed. Such statutes operate to increase and render more valuable the interest which the tenant in tail possesses, and are not therefore open to objection by him. But no other person in these cases has any vested right, either in possession or expectancy, to be affected by such change; and the expectation of the heir presumptive must be subject to the same control as in other cases.4
The cases of rights in property to result from the marriage relation must be referred to the same principle. At the common law the husband immediately on the marriage succeeded to certain rights in the real and personal estate which the wife then possessed. These rights became vested rights at once, and any subsequent alteration in the law could not take them away.5 But other interests * were merely in expectancy. He [* 361] could have a right as tenant by the courtesy initiate in the wife's estates of inheritance the moment a child was born of the marriage, who might by possibility become heir to such estates. This right would be property, subject to conveyance and to be taken for debts; and must therefore be regarded as a vested right, no more subject to legislative interference than other expectant interests which have ceased to be mere contingencies and become fixed. But while this interest remains in expectancy merely, that is to say, until it becomes initiate, – the legislature must have
Smith on Stat. and Const. Construction, 412. 2 De Mill v. Lockwood, 3 Blatch. 56.
3 On the same ground it has been held in Massachusetts that statutes converting existing estates in joint tenancy into estates in common were unobjectionable. They did not impair vested rights, but rendered the tenure more beneficial. Holbrook v. Finney, 4 Mass. 567; Miller v. Miller, 16 Mass. 59; Anable v. Patch, 3 Pick. 363; Burghardt v. Turner, 12 Pick. 534. Moreover, such statutes do no more than either tenant at the common law has a right to do, by conveying his interest to a stranger. See Bombaugh v. Bombaugh, 11 S. & R. 192; Wildes v. Vanvoorhis, 16 Gray, 147.
4 See 1 Washb. Real Pr. 81-84 and notes. The exception to this statement, if any, must be the case of tenant in tail after possibility of issue extinct; where the estate of the tenant has ceased to be an inheritance, and a reversionary right has become vested. 6 Westervelt v. Gregg, 12 N. Y. 208.
full right to modify or even to abolish it.1 And the same rule will apply to the case of dower; though the difference in the requisites of the two estates are such that the inchoate right to dower does not become property, or any thing more than a mere expectancy at any time before it is consummated by the husband's death. In neither of these cases does the marriage alone give a vested right. It gives only a capacity to acquire a right. The same remark may be made regarding the husband's expectant interest in the after-acquired personalty of the wife: it is subject to any changes in the law made before his right becomes vested by the acquisition.
Change of Remedies.
Again: the right to a particular remedy is not a vested right. This is the general rule ; and the exceptions are of those peculiar cases in which the remedy is part of the right itself. As a general rule every State has complete control over the remedies which it offers to suitors in its courts. It may abolish one class of courts and create another. It may give a new and additional remedy for a
· Hathorn v. Lyon, 2 Mich. 93 ; Tong v. Marvin, 15 Mich. 60. And see the cases cited in the next note.
* Barbour v. Barbour, 46 Me. 9; Lucas v. Sawyer, 17 Iowa, 517; Noel v. Ewing, 9 Ind. 57; Moore v. Mayor, &c., of New York, 4 Sandf. 456, and 8 N. Y. 110; Pratt v. Tefft, 14 Mich. 191; Reeve, Dom. Rel. 103, note. A doubt as to this doctrine is intimated in Dunn v. Sargeant, 101 Mass. 340.
3 Westervelt v. Gregg, 12 N. Y. 208; Norris v. Beyea, 13 N. Y. 273; Kelly v. McCarthy, 3 Bradf. 7. And see Plumb v. Sawyer, 21 Conn. 351; Clark v. McCreary, 12 S. & M. 347; Jackson v. Lyon, 9 Cow. 664; ante, 287–292. If, however, the wife has a right to personal property subject to a contingency, the husband's contingent interest therein cannot be taken away by subsequent legislation. Dunn v. Sargeant, 101 Mass. 336. In Sutton v. Asker, 66 N. C. 172, it was decided that where by the statute the woman's right of dower was subject to be defeated by the husband's conveyance, a subsequent statute restoring her common-law rights was inoperative as to all existing marriages.
* See ante, p. 290, and cases cited. The giving of a lien by statute does not confer a vested right, and it may be taken away by a repeal of the statute. Watson v. N. Y. Central R. R. Co., 47 N. Y. 157; Woodbury v. Grimes, 1 Col. 100.
• Rosier v. Hale, 10 Iowa, 470; Smith v. Bryan, 34 Ill. 377; Lord v. Chadbourne, 42 Me. 429; Rockwell v. Hubbell's Adm’rs, 2 Doug. (Mich.) 197 ; Cusic v. Douglas, 3 Kansas, 123; Holloway v. Sherman, 12 Iowa, 282; McCormick v. Rusch, 15 Iowa, 127.
right already in existence. And it may abolish old remedies and * substitute new. If a statute providing a remedy [* 362] is repealed while proceedings are pending, such proceedings will be thereby determined, unless the legislature shall otherwise provide ;? and if it be amended instead of repealed, the judgment pronounced in such proceedings must be according to the law as it then stands. And any rule or regulation in regard to the remedy which does not, under pretence of modifying or regulating it, take away or impair the right itself, cannot be regarded as beyond the proper province of legislation.
But a vested right of action is property in the same sense in which tangible things are property, and is equally protected against arbitrary interference. Where it springs from contract, or from the principles of the common law, it is not competent for the legislature to take it away. And every man is entitled to a certain
Hope v. Jackson, 2 Yerg. 125; Foster v. Essex Bank, 16 Mass. 245; Paschall v. Whitsett, 11 Ala. 472; Commonwealth v. Commissioners, &c., 6 Pick. 508; Whipple v. Farrar, 3 Mich. 436; United States v. Samperyac, 1 Hemp. 118; Sutherland v. De Leon, 1 Texas, 250; Anonymous, 2 Stew. 228. See also Lewis v. McElvain, 16 Ohio, 347; Trustees, &c. v. McCaughey, 2 Ohio, N. S. 152; Hepburn v. Curts, 7 Watts, 300; Schenley v. Commonwealth, 36 Penn. St. 29; Bacon v. Callender, 6 Mass. 303; Brackett v. Norcross, 1 Greenl. 92; Ralston v. Lothain, 18 Ind. 303; White School House v. Post, 31 Conn. 241.
? Bank of Hamilton v. Dudley, 2 Pet. 492; Ludlow v. Jackson, 3 Ohio, 553; Eaton v. United States, 5 Cranch, 281 ; Schooner Rachel v. United States, 6 Cranch, 329.
3 See cases cited in last note. Also, Commonwealth v. Duane, 1 Binney, 601; United States v. Passmore, 4 Dall. 372; Patterson v. Philbrook, 9 Mass. 151; Commonwealth v. Marshall, 11 Pick. 350; Commonwealth v. Kimball, 21 Pick. 373; Hartung v. People, 21 N. Y. 99; State v. Daley, 29 Conn. 272; Rathbun v. Wheeler, 29 Ind. 601; State v. Norwood, 12 Md. 195; Bristol v. Supervisors, &c., 20 Mich. 95; Sumner v. Miller, 64 N. C. 688.
* See ante, pp. 287–292.
5 Dash v. Van Kleek, 7 Johns. 477; Streubel v. Milwaukee and M. R. R. Co., 12 Wis. 67; Clark v. Clark, 10 N. H. 386 ; Westervelt v. Gregg, 12 N. Y. 211; Thornton v. Turner, 11 Minn. 339; Ward v. Brainerd, 1 Aik. 121; Keith v. Ware, 2 Vt. 174; Lyman v. Mower, ib. 517; Kendall v. Dodge, 3 Vt. 360; State v. Auditor, &c., 33 Mo. 287; Griffin v. Wilcox, 21 Ind. 370; Norris v. Doniphan, 4 Met. (Ky.) 385; Terrill v. Rankin, 3 Busb, 453. An equitable title to lands, of wbich the legal title is in the State, is under the same constitutional protection that the legal title would be. Wright v. Hawkins, 28 Texas, 452. Where an individual is allowed to recover a sum as a penalty, the right may be taken away at any time before judgment. Oriental Bank v. Freeze,