The weekly pioneer and Democrat. [volume] (Saint Paul, Minn. Territory) 1855-1865, 1860-12-21

,e.,e The Three Year Law. ,,
% Judge PALMER, of the District Court,
recently rendered decision declaring the
Three Year Law unconstitutional. We
published 1.-The entire opinion in our daily,
but have not room for 1t in the weekly
edition. After reviewing, at length, the
legislation prior to- 1860, on mortgages, the
Judge proceeds to the consideration of the
constitutionality of the Three Year Law.
We quote this portion of the decision !.
1t is not claimed, however, by either party
that this Act is applicable to the present case,
and it has been noticed in this connection, be.
cause it is the first law the subject since the
adoption of the Revised Statutes in 1851, and
the law Of 10 March, 1860, is merely amenda.
tory of it.. By this latter Act the statuatory
after sale, and possession of the premises
given to the mOrtgagor or owner for one
year after sale, without paying anything until
the end OF the year, (and not then unless he
so elects) and tor two years longer upon pay.
ing, at the end of each year, interest on the
amount the land sold for at the rate of twelve
per cent. per annum.
liens, and cases in which the State or any
township, city or county may be party and
it is further provided, that all laws in force at
the passage of the act on the subject of re-.
demption Of property, shall continue so to be
as to all cases to which the act cannot legally
extend and apply. There is also the important
provision by which mortgagor may waive
the whole or any portion of the time of redemp.
ton allowed by the act. .,
This is the law which the defendants, Hayes
and Emmett, claim shall apply to this case, and
control the form and effect of the decree, and
the rights of the plaintiffs under it. They in.
sist that it operates merely on the remedy. and
hence is not obnoxious to the objection that
it impairs the obligation of contracts. On
as the act was intended to apply to contracts
made before its passage, it is within the consti.
tutiOnal inhibition and void. Let US test the
correctness OF these positions.
What are the obligations of mortgage con
tract? There are two controlling elements in
every contract, its terms and the law applica
BILE thereto. And in no species of contracts are
they Especially the latter more important
than in the contract of mortgage. In fact, the
law of the contract attached to it at its incep-
ton, was the sole ground upon which court
OF equity interposed to protect the rights of the
mOrtgagor, who was remediless in court of
law, simply because in that court the law of
the contract in favor of the mortgage could
alone be recognized and enforced. The law of
contract is that element or quality which. in
connection with its terms or in spite of them,
creates, defines and regulates the rights and
interests of the parties. Thus in mortgage
contract there may be no stipulation that the
mOrtgagor may redeem after default, or there
may be one that he shall not redeem; in either
case his right to redeem is complete, and no
subsequent legislation can take it away. 1t is
a right inherent in the nature of the contra st,
and cannot be Invested even by express coven-
ant of the parties. Coincident and coequal
with this right, and inseparable from it, in the
absence OF express agreement or statutory
provision existing at the inception of the con
tract, is the right of the mortgage to obtain
his debt in money when due, or in default of
the money, to take possession of the mortgaged
premises. subject to an account for the rents
and profits, and to seek the aid of a court of
equity to extinguish the mortgagor's right or
equity of redemption within a reasonable time,
according to the usual practice of that court.
This right, like that of the mortgagor, is not
necessarily given by the terms of the contract,
but by the law which interpenetrates and
abides in it. The idea that the obligations of
mortgage contract are all in favor of the
mortgagor, and that the mortgage has no
rights which legislatures and courts are bound
10 respect, is entirely erroneous, and to it may
be attributed much of the legislation on the
subject which the courts have refused to up.
hold.
The obligations of a contract are reciprocal.
The essence of every contract is its mutually,
and when one contracting party is released
from his share of tie obligation, or when new
right is created for him to the detriment of the
other party, the contract is not only impaired,
but practically abrogated. How is it in this
case? When this mortgage was executed in
1854, the mortgages were entitled, not by the
law of the remedy, but by the law of the con.
tract, to immediate possession of the mort.
were further entitled by the law of the remedy
to decree of sale within nine months after
complaint of foreclosure should be filed. In
like manner the mOrtgagOr was entitled to his
equity of redemption, and to the said period OF
nine months in which to exercise that right.
Now, while have no doubt that the time OF
redemption being dependent on the remedy
abridged or extended within reasonable limits,
Ihave just as little doubt that no right given
blythe contract can be taken away. and none
not so given, can be created for either party.
Suppose the act of 1860 had undertaken to alb.
rogate the equity of redemption as to all mort
cages existing at the date of its passage.
Would any court hold it valid for moment
But is this right of the mortgagor any more
sacred or any more an obligation of the con.
tract than the mortgagee's right of possession
after default and sale? To be sure it is more
of legal than an equitable right, but the con-
stitutional inhibition covers both. The law of
March 10th, 1860, directly takes away this
right. 1t does not do it by changing or en-
larging the remedy, but leaving the remedy
untouched, and thus forcing the mortgage to
avail himself of it it prescribes that he shall
have no such right for a year after sale at all
events, and not even then in case the mort
gagor chooses to keep possession himself This
right moreover is taken away for the first year
without compensation, since the mOrtgagOr is
notrequfredto pay anything until the end of
the year, and then. not as compensation for his
occupancy and reception of rents and profits,
but merely as a condition to another year s
possession. Here then is an attempt not only
to deprive one party of a valuable right, but to
bestow it upon the other without compensa-
ti0n. The proposition is alike opposed to rea.
son, justice and authority. ''
The Legislature of Michigan passed an act
inhbiting an action of ejectment by mortga-
gees before foreclosure of the mortgage and
expiration Of the time of redemption, and the
court Il Mapn, 66) in holding it unconstituton-
al and void as to mortgages in existence at the
time of its passage, lay down the doctrine, that
the right of possession to mortgaged premises
by the mortgage after default is part of the
contract itself: that it is substantial and val
liable right which cannot be taken away with.
out imparing the obligation of the contract.
Under the law in force at the time the mort
gage in this case was executed, the mortgagor
was entitled to possession after default and I'M
til sale. and the mortgage was entitled to pos
session upon and after sale. These were dis.
finct substantive riphts imnOrtant and yalua.