Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1843-03-09

known to the laws, required express stipulation 10
define or secure them They were annexed to the
contract al the time IT was made, and formed part OF
it, and any subse qucn. law, mpalrng the rights thus
acquired lmpairs the obligation which the contract
imposes.
which have given rise 10 this controversy As
Germs he law Of Feb. ~ lSi, appears TO the Court
not 10 act merely the remedy but directly upon
the contract itself, and 10 engraft Upon il condi-
tons injurious and unjust to the MORTGAGE 1t declares
that although The moftgaged premises should be sod
under the decree OF The Court OF Chanterv yet that
the equitable estate OF the moltgngos shall net be
ting shed but shall continue for twelve months aite
the sale and il moreover gives new and like estate
which before had no existence TO the juIncnt creditor
TO continue for fifteen months. Ii such rights may be
added TO tie original contract, by subsequent egis
lation, it would be difficult TO say what point taey
mus, stop.
| M equitable ineres, in The premises may in ike
manner he conferred upon others and the RICH;
deem may h. prolonged 10 deprive .hc mortgage
of he le.c o lhis secuTiiy,by rendering tie property
Gnsasabe Tor anything, Ike tic value. Tbs law gives
20 the mortgagnT and - the judgment creditor, eqni
'aue estate the premises s:h:c! neither OF them
would have been entitled to under the original contract
AM! these interests directly aad materially III
conflict witt: those which the mortgage acquired when
the mortgage was made. Any such modification of a
contract By subsequ legislation against the consen,
OF one OF The parties, unqnesliona5y impars ts obga
!
The second point certified arises under the law oi
February 81 1c1I. The observations already made in
relation to the other act apply with equal force TO this
II Is true that this law apparently acts upon the remedy;
and not directly upon the contract. Yet its eec; 10
deprive the party Of his pre- existing right to orecose
the mortgage by sale Of the premises, and 10 impose
upon him conditions hch would frequently render any
sale altogether impossible. And this law still more
Objectionable because II is no, general one, and pre-
scrioing the mode OF selling morgaged premises IN all
bat, II
tracts made prior the Ist OF May, S4i The was
passed The 9th OF February in that year; and il
operates mainly past contracts and not on future
Ii the contracts intended TO be effected by il had been
specifically enumerated in the law, and these conditions
applied TO hem while contracts OF the sumo description
10 be enforced the ordinary course of legal pro
ceedings, no one would doubt that such law
constitutional Here particular class OF contracts ia Sc
lected and incumtered with these new conditions And
IN can make difference in principle whether they
described by TIE of the parties BY The
which they were made.
In the ease before lis, the conflict b. these laws with
the obligations 81 the contract made the evident
oy an express covenant contained the GsrUmen.
sr whereby the mortgage default OF payaien.
authorised 10 enter OH the premises and sell them al
pubiic auct'on and 10 retain out OF the money TINS
raised the amount Gue, and pay the ogerPIus, any,
To the mortGagor. 1t IS impossible read this
nani and compare II with the laws under conSde-
ration without seeing that both of these acts marr-
ally interfere with the express agreement of The parties
contained this Yeithe right here secured
10 the mortgage. substantially nothing than the
right 20 sell" Tree and discharged of the equitable in.e
rest Of k'nzie and wife, in order 10 obtain lis money.
Now, al The tine this deed executed, the right L.
SELL Tree aad discharged o! the equitable of the
mpraagof YVES part Of every ordinary contract OF
mortgage IN the State without the aid o! tits express
covenant.
AEd the only difference between the right annexed
By law aud that gwen by The covenant CONSISTS in his
that IN the former case, the night of sale must be excr
ced under the direction OF the Court OF Chancery upon
such terms shall prescribe and the sale made by
agent OF The Court in thu latter the sale to be made
by the party himself. But under this covenant,
The sale made by the party far subject the
peryislon OF the Court, that it will be set aside and
new one ordered it reasonable notice not given,
the proceedings BE- regarded any respect contrary
To equity and justice There is, therefore, IN truth,
but little material difference between the rights OF the
mnrtgagee viii! or without ,h,s covenant The dstnc-
ton consists rather IN tie form ot the remedy, Than IN
the substantial right. Ard evident that the
laws IN question: invade the right secured by this
venant there can be sound for different
conclusion, where similar rights incorporated Ivy
lay into the contract, and form part o.. the tune
1t Is made.
Mortgages made since the passage of these laws
mast undoubtedly be governed by them For every
State has the power 10 prescribe the legal and equitable
Obligations of contract to be made and executed with
IN lis jurisdiction. 1t may exempt any property il
p!'ptl, OI payment Oh utO.,
may impose such conditions and restrictions upon the
creditor as l'< judgments and policy may dictate. And
ali future would be subject t. such PROVISIONS
ard they would b. obligatory upon The parties in the
Conr,s Of the T.. S well IN those o: the State.
We speak Of course, of contracts made and to be |
executed in the State 1t of tint description
TIA. is now before us; and do not think it proper to
70 beyond ii.
Upon The questions presented BY the Circuit Court,
therefore
1cf hat tha cbonl1 d,yocf fhp tn
be sold public auction to the highest bidder without
regard 10 the Law Of Feb. q 1871, which gives the |
right Of redemption TO the mortgagor for II months.
and to the judgment creditor for fifteen.
Cd. That the decree should direct the sale of the
mortgaged premises without being first valued by three
honseholders, and without requiring two thirds of The
amount Of the said valuation be bid according to the
law of Feb. q, lsil
The decision Of these two questions disposes Of the
hrd-and Nc shall direct these answers TO be certified
Ia the Circuit: Court.
TEST WA. TH0S. CARROLL,
Clerk Sup CT I. 5.