The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1867-01-12

ment creditor an equitable estate In the
premises which neither of them would
have been entitled to under the original
contract and these new interests are di-
rectly and materially In conflict with those
which the mortgage acquired when the
mortgage was made. Any such modiica-
tion. of contract by subsequent legisla-
tion agaipsAathe consent Of one of the par
ties unquestionably impairs It's obliga-
tions, and is prohibited by the Constitu-
tion.
In Green Us. Biddle, Wheat, IS, Mr..
Justice Washington, in delivering the OPT
nion Of the court, says: "The objection to
law on the ground Of its impairing the
obligation of contract can never depend
on the extent of the change which the law
effects in it. Any deviation from its terms
by postponing or accelerating the period of
performance which it prescribes, imposing
conditions not expressed in the contract,
or dispensing with the performance OF
those which are, however minute or appa-
rently immaterial in their effect upon the
contract of the parties, impairs its obliga-
tion.
In Howard rs.IBugbee, "a: How, 46l, it
was decided that: "A statute Of the State
of Alabama authorizing redemption of
mortgaged property in two years after the
sale, under decree, by bona fde creditors
of the mortgagor, is unconstitutional, and
void as to sales made under mortgages ex-
ecuted prior to the date of its enactment,
as impairing the obligation Of the con-
tract"
/ might continue these citations, but
must content myself with referring to the
following cases, showing other instances in
which the courts have held the obligation
of the contract to be impaired by legisla-
tive enactments.-Vaphom lessee Us.
Dorrance, 2, Dallas, 304; Fletcher Us.
Peck, 6, Cranch, 81; State of New Jersey
Us. Wilson, Z, Cranch, 164; TENET Us. Tay-
lor, 9, Cranch, 43; the town of Parolet rs.
Clark, Q, Cranch, 292; Mcmillan as. Nc
Neill, 4, Wheaton, 209 Dartmouth Col
lege Us. Woodward, 4, Wheaton, SIS; and
The Farmers and Mechanics Bank Of PEN
sylvania, 6, Wheaton, l3l.
Nv. Having ascertained what is con-
tract, and the definition given by the
courts to the term "obligation " of con-
tract, and in what cases it has been held
by the courts that statutes passed by the
Legislatures of the States "impaired 1.-THE
obligation of contracts, let us apply these
well-established and clearly defined prin-
cipleS to the statute now under consldera-
ton, and see its effect on the contract set
forth in the deed Of trust and involved in
this suit. Does the statute "impair the
obligation of this contract? So much Of
the statute as relates to the case at bar
will be found in the first section of the
act, and is in these words:
"Be it enacted by the General ASSenblyV
Virginia., That while this act remains in
force, no execution, venditioni exponas,
attachment upon a decree or order for the
payment of money, or other process TO
compel the payment of money, or the sale
of property for that purpose, shall be
! issued, or if heretofore issued, shall be
proceeded with; nor shall there be any
sale under a deed of trust, mortgage,
| pledge, or other security; nor under any
Judgment, decree, or order for the payment
of money, except in the cases hereinafter
provided for, until the first day of January
eighteen hundred and sixty-eight.'
This statute is designed, as its preamble
recites, "to prevent the unjust and ruin
GUS sacrifice of property that would ineyl-
tably result from forced sales in the pre-
sent embarrassed condition of the coun-
try; and it proposes to furnish relief by
granting temporary suspension of rene
dies of all judicial proceedings to en-
force the collection of debts.
Such a statute rests upon the assumption
that the Legislature has the power to post
pone the fulfilment of contract beyond
the time stipulated for it's performance in
the contract ITSELF This right to postpone
for one period implies the right to postpone
for another period; and as the state OF
things which called for the first delay may
continue for series of years, the conse-
auence may be a postponement of the full
| flment of all contracts for that time; and
if the Legislature can defer the payment of
debts by ga temporary suspension OF the
remedy" why may it not pass an act au-
thorizing the collection of debts before
they become due? The obligation of the
contract may be impaired by compelling
either party to do more than he has under
taken to do by the stipulations of his con-
tract. When the contract is consummated,
the law defines the duty and the right,
compels one party to perform the thing
contracted for, and gives the other the
right to enforce the performance by the
remedies then in force. The rights OF both
are, in the eye of justice, equally sacred
and whether those of the creditor are
sacrificed to the convenience OF the debtor,
or those of the debtor are sacrificed to the
convenience of the creditor, it is clear that
the binding force Of the contract has been
weakened, its obligation thereby impaired,
and the Constitution violated.
BY this statute, all remedy whatever to
make sale under the deed Of trust in con-
troversy is taken dray until the first day
of January, 1868. Many of the notes are
due, and the creditor is entitled to his mo-
ney nop; but this statute postpones the
recovery of it for nearly two years beyond
the time specified in the contract by de-
nying to him the right to make sale of his
debtors property, either under Judgment,
decree of o court of chancery, or under the
terms stipulated in the deed of trust. The
Illinois statute, which prohibited sale
except upon condition that the property
should bring two-thirds of its appraised
value, but allowing a sale in such case to
be made, was held by the Supreme Court
of the United States to be material modi-
fication of the contract contained in the
mortgage deed, and therefore unconstitu-
tional and void. BY that statute the par
ties were allowed to test the market, and
see if the property would sell for two
thirds Of its value. BY our statute
no opportunity to test the market by sale
is permitted, even if it were manifest
the property would bring its full value
But the Legislature, assuming that every
sale under deed of trust, mortgage,
pledge, or security, or under any judg-
ment, decree, or order for the payment OF