The Illinois free trader and LaSalle County commercial advertiser. [volume] (Ottawa, Ill.) 1841-1843, 1843-03-31

with the conditions contained in the pro-
viso. And at law he had a right to sue
for and recover the land itself But in
equity this legal title is regarded as trust
estate TO secure the payment ofthe money;
and therefore when the debt is discharged,
there is a resulting trust for the mortga-
gor. Peters AL. Conrad Us. The
Atlantic Insurance Company. 1t is
upon this construction of the contract that
courts of equity lend their aid either to
the mortgagor or the mortgage in order
TO enforce their respective rights. The
court will upon the application of the
mortgagor direct the reconveyance of the
property to him upon the payment of the
money and upon the application Of the
mortgage it will order a sale of the pro-
perty to discharge the debt. But as courts
of equity follow the law, they acknowl
edge the legal title 10 the mortgage, and
never deprive him of his rights at law
until his debt is paid and he is entitled
to the aid of the court to extingulsh the
equitable title Of the mortgagor, in order
that he may obtain the benefit of his secu
ri,y. For this purpose it is his absolute
and undoubted right under an ordinary
mortgage deed, if the money is not paid at
the appointed day, to 60 into the court of
chancery and obtain its order for the sale
of the whole mortgaged property (il the
whole is necessary free and discharged
from the equitable interest of the mortga-
gor. This is his right by the law of the
contract, and it is the duty of the court to
maintain and enforce il without any I'M
reasonable delay.
When this contract was made, no
statute had been passed by the state chang
ing the rules of law or equity in relation
10 a contract of this kind None such at
least has been brought to the notice of the
court /; and il must therefore be governed,
and the rights of the parties under it mea-
sured, by the rules above stated. They
were the laws of Illinois at the time
and therefore entered into The contract and
formed a part of it without any express
stipulation to that effect in the deed. Thus
for example there is no covenant in the in
strnment giving the mortgagor the right
to redeem by paving the money after the
day limited in the deed, and before he
was loreclosed by the decree of the court
Of chancery. Yet no one doubts his
right or his remedy; for the laws of the
state then in force, this right and remedy
was part of the law Of the contract,
without any express agreement of the
parties. So also the rights Of the mort
gagee as known to the laws required no
express stipulation TO define or secure
them. They were annexed TO the con-
tract at the time i; was made, and formed
a part Of it, and any subsequent law i'm
pairing the rights thus acquired, impairs
the obligation which the contract imposed.
This brings us TO examine the statutes
Of Illinois which have given rise 10 this
controversy. As concerns the law of Feb.
10, 1912, il appears 10 the court not to
act merely on the remedy, but directly
upon the contract itself. and to cngralt
upon it new conditions injurious and I'M
Just TO the mortgage. 1t declares that
although the mortgaged premises should
be sold on the decree of the court of chan
Gerry, yet that the equitable estate OF the
mortgagor shall not be extingushed, bu,
shall continue for IL months after sale
and it moreover gives new and like es
tate which before had no existence to the
Judgment creditor, to continue for filteer
months. If such rights may be added Il
the original contract, by subsequent legis
lation, it would be difficult TO say at wha
point they must stop. An equitable in
terest IN the premises may IN like name
he conferred upon others, and the RICH
to redeem may be so prolonged, as TO de
prive the mortgagee of the benefit Of hi
: security, by rendering the property un
t saleable for any thing like its value
4 This law gives to the mortgagor and t.
the judgment creditor, an equitable estat
in the premises, which neither of then
: would have been entitled to, under til,
S original contract. And these new inter
: ests arc directly and materially in conaic
j. with those which the morlgagee acquire'
: when the mortgage was made. An
: such modification OF contract by subse
6 qucnt Legislation, against the consent G
+ one Of the parties, unquesllonably impair
d its obligations, and is prohibited by tn
= constitution.
Y The second mint certified arises un1p