The weekly pioneer and Democrat. [volume] (Saint Paul, Minn. Territory) 1855-1865, 1860-12-21
distinct estate .in tbe morfaaeorL riabto 81 RI.

distinct estatesin tile mortgage ora right.of4 re.
demption for three years after sale, and this
too without regard to the value of the security
or the peculiar or meritorious circumstances of
any particular case. This new right is not an
equitable one in any sense of the word. 1t is
purely statutory right, arbitrarily created and
to arise and tako effect only after the equity of
redemption has caused by foreclosure and sale.
1t is not even an extension or prolongation
Of the equitable right of redemption, since
that, in case Of foreclosure t1by action,
is extinguished by the sale, but it Is separate
independent right, created by statute and i'm.
posed on the title-the fee-which passes on
the completion of legal proceedings. 1t is
valuable right, and in cases where the property
sells for less than Its intrinsic worth, it may be
very valuable, and may, probably, be levied on
and sold by creditors of the mortgagor. Its
value, OF course, must be derived from some
source, and little reflection will show that it
is carved out of previously existing rights of
the mortgage. know it is urged that it only
affects the purchaser, and as he buys with his
eyes Open he cannot complain. There are two
conclusive answers to this view, a g it seems to
me; First-No stranger will be likely to seek
an investment where he obtains neither title
nor possession for three years, and where no
means exist by which the evidence of his title
can be perpetuated, so that practically the
chaser; and second-The estate sold is less val
liable by just SO much as the right of redemp
ton for three years is worth. 1t is less valua.
BILE by the difference between an estate in fee
with the title and the evidence of it, perfect,
and an estate encountered with charge run.
ming through three years without provision
made whereby the extnguishment of such
charge may be shown or appear of record. If
no one but the purchaser was interested in the
estate sold, no actual injustice might arise, but
the mortgage is the chief party in interest,
and the value of his security is of paramount
importance. Anything which diminishes the
value of that security directly, as creating a
new charge upon it, and not indirectly as by
so changing remedial proceedings as to render
it less easy to be realized, must of necessity
impair the obligation of the contract by which
the security was acquired. The law of 1860
certainly has this effect. 1t does not assume
to touch the remedy or change, in any essen.
tal particular, the proceedings necessary to
enforce the rights secured by mortgage con-
tracts. 1t rather prescribes different effect
to the same remedial proceedings by causing
new estate to arise on their completion for the
sole benefit Of the mortgagor.
In addition to these features, which, in my
judgment. render the law unconstitutional and
void as to mortgages executed prior to it's pas.
sage, it has one or two others hardly less oh.
Jectlonable, and which ought not to be over.
looked. Cases in which the State, or any town.
ship, city or county, is a party, are excepted
from the operation of the act. Consequently.
mortgagor, who is SO unfortunate as to have
mortgaged his property to one of these favored
corporations, has no time of redemption what.
ever, if that part of the act is to be held valid.
The State, or any township, city or county,
being mortgage, may fOreclOse by advertise.
ment, and the sale will pass the title, and the
the mortgagor be shut out from all right of re-
demption, and such is the effect, not only as to
mnrfrQ roc do hafor h,f -
executed since, the passage of the law. II this
feature OF the law is to be upheld, no man can
now execute mortgage in the ordinary form
to any OF the aforesaid corporations and be
entitled to any right or equity of redemption,
either before or after sale for if all prior laws
on the subject are repealed by the act of 1860,
a mortgagor in such case would not be emit.
tied even to possession. He loses everything
upon the sale. What considerations induced
the law making power to thus restrict the ope.
ration OF a general law, is not apparent, nor is
it material. since it is quite probable that the
legal validity OF the proviso which contains the
exception referred to, cannot be sustained.
Another peculiar feature of the law is the
section permitting waiver. Practically, this
renders the whole nullisy, since noone will be
fOOilsh enough to take mortgage, while the
act Is IN force, without requiring waiver of
the right of redemption allowed by it. Hence.
if the act be held valid as to mortgages execu-
ted prior to its passage, the singular spectacle
will be presented of law that is practically
wholly retroactive in its operations result as
unjust as it is novel.
Finally, it may be observed. that even the
Legislature had doubts as to the scope and
operation of the act, since they were careful
to provide that all laws on the subject in force
at the time the act was passed, should so re.
main as to all contracts to which the act itself
could not legally extend and apply.
The following cases are in cOnsonance with
the doctrine that law like the one under
consideration is unconstitutional and void:
Van Horne's Lessee VS.. Dorrence, Dallas,
3O4. Fletcher'v Peck, Cranch, 81. New
Jersey VS.. Wilson, Cranch, l64. Crittenden
VS.. Jones, Halls Law Journal, $40. Terrett
VS.. Taylor, Cranch. Town of Paulett VS..
Clark, 8 Cranch, 292. Sturges VS.. Growing.
shield, 4 Wheaton, 122. Mcmillan vs.. Mcneil,
Wheaton, 2O9; Wheaton, l3l. Green VS..
Biddle. Wheaton, 50; ib., 464. Blair VS..
Williams. Littel. (Ken.) IS ib., AZ. Holmes
VS.. Holmes, Barb, 295. White VS.. White, 5
Barb, 474. Robinson VS.. Magee, Cal. 81.
Bronson VS.. Kinse, How, 81. McCracken
VS.. Hayward. How, 60S. Grimes VS.. Bryne,
2 Min, SO. per Flandrau, Judge. ...
The decree may be drawn in the usual form,
in accordance with the laws in force at the
time of the execution of the mortgage.
E. G. PALMER, Judge.
Dec. S, 1860. II. a =.