The weekly pioneer and Democrat. [volume] (Saint Paul, Minn. Territory) 1855-1865, 1861-02-15

remedy enters into and becomes one of the
stlpulations of the parties. This Court has al
ready lin Grimes VS.. Bryne, MINI. 89], sub
stantially dissented from this doctrine, and we
now In terms hold that the law of the remedy
does not enter into the contract We further
tnlnK mat IL may safely be asserted. That on.
~ such laws enter into and become a part of
Courts OF foreign jurisdiction
That an act the Legislature does not become
one OF the conditions stipulated by the parties
to contract; nor does it act externally on the
agreement, unless it have the full force of law
wherever the contract is sought to be en-
forced: ... .- ,I
That the Legislature may change the law. of
the remedy at discretion, provided the obliga-
ton OF the contract is not thereby impaired,
but the mere fact that the new remedy is less
convenient than the old one, or renders the
recovery OF debts more tardy and difficult,
does not OF ltsef render it unconstitutional:
And that as every presumption is in favor of
remedial Statute, the fraud upon the consti-
tutlonal restriction against impairng the obi
CATION OF contracts, must clearly appear or the
law will be indicated.
These several propositions it is believed are
supported by sound reason and authority. Let
us see how they affect I'M Statute under con-
sideratiOn. 1891
In a simple mortgage of real property to
secure the payment OF money, the contract is
simply conveyance by the mortgagor to the
mortgage, upon a condition that the convey.
ance shall be void if the mortgagor pay GER
tain sum by day certain. In other words
that the mortgage shall have the property
unless the money is paid at given day. At
common law the interest of the mortgagOr was
treated as resting upon the exact performance
OF this condition; the forfeiture or breach
thereof becoming absolute by non-payment at
the day. But the courts of equity relieved
against this forfeiture, by giving to the mort.
gagOr right to redeem after condition broken,
and 1t has now become necessary for the
mortgage to apply to court of equity to have
this right or equity of redemption barred or
foreclosed, before the mortgage contract can
be carried into effect according to its terms,
otherwise the right to redeem continues so long
as the mOrtgagor remains in possession, and
indeed until after the statute of limitations has
run. When application is thus made to en-
force the mortgage, the court in the exercise of
its chancery powers, may order the mOrtgagor
to pay the amount due by certain day, or be
ferever-foreclOsed of all right to redeem, thus
carrying out the terms of the contract; or, if
justice require it, it may order the mortgaged
property 10 be sold, and the proceeds applied
first to the payment of the debt, and the bal
ance, If any, to the use of the mortgagor. This
sale, however, is not made in pursuance of,
but rather despite the express terms of the
mortgage: The power SO to order it rests
the exercise Of its equitable powers, and
exists Independent of any statute. The terms
also upon which the sale is made, whether
for cash, or upon credit, whether at public or
at private sale, and all matters pertaining
thereto, are, unless otherwise provided by law,
within the control of the court, though the
courts have usually adopted the proceedings
prescribed in sales upon executions at law.
When, therefore, the legislature controls the
exercise Of this discretionary power to order the
property to be sold, by directing the conditions
upon which the sale shall be made, it is mere
regulation of one of the remedies afforded in
judicial proceedings for the foreclosure of mort.
cages, leaving the remedy by foreclosure abso-
lutte untouched. And although the change may
have made the remedy less expeditions, or rem
dered the collection of debts more tardy and
difficult, yet that, as we have before stated,
does not render it unconstitutional. So long as
a reasonable remedy is provided, there is no
fraud upon the Constitution and certainly a
mere change in one only, of two existing reme-
dies, cannot have that effect. The power of
our courts to decree foreclosure absolute has
never been interfered with by the legislature.
The mortgage may still ask to have this done,
subject, however, to the power of the court to
order sale where equity requires it. Bnt as
courts of chancery have always been extreme
ly liberal in such cases, seldom foreclosing
where anything beyond the debt can be real
lied by sale, and always giving to the mort
gagOr ample time to redeem before foreclosure,
it has been the usual practice for the mort
gage to anticipate by asking for sale in the
first instance.
There is class of cases. however, in
which another and more difficult question
arises. 1t is common, for the purpose of
avoiding the delays incident to judicial pro-
ceedings, for the mOrtgagOr to execute pow
er authorizing the mortgage or some third
party, in case of default in the payment of the
debt secured by the mortgage, to sell the mort
gagged property and apply the proceeds to the
extinguishment of the debt. And it is insisted
that the Legislature cannot interfere with the
exercise of this power so as to force the trus-
tee to sell an estate or interest different from
that which the power authorized him to sell.
As to this question we hold that where va.
lid power has been given, the Legislature can.
not interfere with its exercise so as to change
the estate which the trustee is authorized to
sell, as that, we think. would be impairng the
obligation of the contract. But when the
mortgage does not resort to the power, but
applies to the Court for the enforcement of his
mortgage, then any sale the Court may order
is not made in pursuance of the power, but
by its own inherent authority, and the es.
tate necessary to be sold in such cases
was always matter within the control of the
Court. He must therefore take the remedy as
he may find it, and cannot object that it is less
beneficial than that afforded at the time his
mortgage was executed. Judicial remedies
are to the fullest extent under rghtful Control
of the Legislature, notwithstanding the pro.
vision in the Federal and State Constitution,
VS.. Gould, Kern 2Sl,1 and the mere Legis-
lative interference with the power of the Court,
by imposing h limitation or condition upon the
Sales which it may order, is no interference
with the obligation of contracts.