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

but is confined 10 judgments rendered and
contracts made prior 10 the lsl Of May,
1871. The act was passed on the 9Th
of Feb. in that year; and il operates
mainly on past contracts and not on !u-
turc. IL the contracts intended 10 be ar
fected by ii had been specifically enume-
rated in the law, aud these conditions APP
piled TO them, while other contracts Of
the same description were TO he enforced
in the ordinary course Of legal proceed
ings, no ono would doubt that such a law
was unconstitutional. Here a particular
class of contracts is selected and incnm-
bered with these new conditions. And
it can make no difference in principle
whether they are described by the names
of the parties or by the time al which
they were made.
In the case before us the conflict by
these laws with the obligations Of the
contract is made the more evident by an
express covenant contained in The instru-
ment itself, whereby the mortgage in
default of payment, was authorized 10
enter on the premises and sell them at
public auction; and to retain out of the
money thus raised the amount due, and
10 pay the overplus, il any, 10 the mort
gagor. Ii is Impossible 10 read this COW
enant, and compare il with the laws now
under consideration. without seeing that
both of these acts materially interfere
with the express agreement of the parties
contained in this covenant. Yet the
right here secured TO the mortgage is
substantially nothing more Than the right
to sell, free and discharged Of the equi-
table interest Of kinzie and wife, in or
der 10 obtain his money. Now at the
time this deed was executed, The right to
sell, free and discharged Of the equitable
estate of the morigagor, was part OF
every ordinary contract of mortgage in
the state, without the aid of this express
covenant. And the only difference be-
tween the right annexed by law and that
given by the covenant consists in this
that in the former case the right of sale
must be exercised under the direction Of
the court of chancery upon such terms
as il shall prescribe, and the sale made by
an agent of the court; in the latter the
sale is to be made by the party himself.
But even under this covenant the sale.
made by the party is so far subject ,c the
supervision of the court. that it will be
set aside and new one ordered il reason
able notice is not given, or the procecd-
ings be regarded in any respect as contra
ry TO equity and justice. There is there
fore in truth but little material difference
between the rights OF the mortgage with
or without this covenant. The distinc-
ton consists rather in the form Of the
remedy, than in the substantial right.
And as il is evident that the laws in ques-
lion invade the right secured by this COW
enant, there can be no sound reason for y
different conclusion where similar rights
are Incorporated by law into the con-
tract, and form part oft at the time it
is made.
Mortgages made since the passage Of
these laws must undoubtedly be governed
| by them.--For every state has the power
to prescribe the legal and equitable obli-
cations of contract 10 be made and exe-
cuted within its jurisdiction. 1t may ex-
empt any property j, thinks proper from
sale for the payment of a debt. and may
impose such conditions and restrictions
upon the creditor as It's judgment and po-
Icy may dictate And all future con-
, tracts would be subject to such provi-
: sions; and they would be obligatory upon
I the parties in the courts OF the United
States as we'll as in those of this. We
r speak of course of contracts made and TO
/ be executed in the state.--l, is case Of
: that description tina, is now before us;
5 and we do not think it proper 10 go be-
: yond it.
j. Upon the questions presented by the
0 circuit court we therefore answer
e LIST. That the decree should direct the
a premises to be sold at public auction 10
e the highest bidder without regard to the
: aw Of February 10. ls4l. which gives
t the right OF redemption 10 the morigagor
/ for twelve months, aud 10 the Judgment
Y creditor for fifteen.
: ID. That the decree should direct the
u
# sale Of the morgaged premises without
$ being FIRST valued by three hoaseholders,
e and without requiring two thlrgs OF the
amount OF the said valuation to be bid ac-
n cnrhiner 10 The law OF Feb. q. 1871.