The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1868-02-20

one square, twelve Insertions, $50: or,
square, one month, e16;S one square, tw
eJ Iaouths, SIS one square, three months, US.
cited and relied on by the appeilsne
tcounsel- Morse Us. Gould and ais. ! Ker.
|, 1881. InIthat case, an acf exemptfng GER
J. tain property from sale on execution fol
: debts contracted prior TO its passage wa
{ held to be constitutional, because It tmodi.
[ fies the remedy, and neither destroys II
. nor substantially impairs its efficiency.
DEMO, j., In delivering the opinion Of the
court, points to this as 8 guide TO det0f-
mine the action Of the law upon tic 0dli.
i cation: The most obvious method by
which . contract may be impaired by To-
Igislation would be the alteration Of some
of its terms or provisions so that, assum.
ing the validity of the law, the parties
would be relieved from something which
1 they had contracted TO do, or would be
obliged to do something which the con.
tract did not originally require" Adopt
ling this test, is there any question that
Taylor Is relieved by this law from the sale
of his property, for which he had cove.
nanted, and Gregory's assignee obliged 70
wait for his money beyond the time agreed
upon ~ s.
| The deed of trust, as have shown, Is
so peculiar to this State that the foregoing
are the most striking illustrations and
combinations of my views that I
have found among the numerous ad-
tiudications on the subject that I
have examined. But this instrument
fisiso nearly akin to mortgage, differing
only in the Intervention Of trustees, and
its capacity. to be executed without suit,
we may consider it as ruled by the leading
case of Bronson Us. Kinzie. Il How, 3i1.)
It was there held that State law passed
subsequently to the execution Of q mort
gage, which declares that the equitable
estate of the mortgagor shall not be extin-
| guished for twelve months after q sale
under decree in chancery, and which
prevents any sale unless two-thirds Of the
amount at which the property has been
valued by appraisers shall be bid therefor,
| is within the clause of the Constitution Of
the United States prohibiting State from
passing law impairing the obligation OF
contracts. There was q peculiar feature
in this mortgage whereby the mortgagee,in in
default of payment, was authorized to
enter on the premises and sell them at
public auction, and to retain out Of the
money thus raised the amount due, and
to pay the overplus, if any, to the mort
gagor. This might seem to approach more
nearly to the case of our trust deed; but
inasmuch as court Of equity would view
with jealousy the action OF the creditor in
such position, and intervene, on reason
able pretext, to restrain him from damaging
his debtor, this feature of the contract
was only incidentally noticed. It Is
thus treated in the opinion of the
court: "In the case before us the
conflict of these laws with the obligations
of the contract is made the more evident
] by an express covenant contained In the
instrument itself, whereby the mortgagee,
in default Of payment, was authorized to
enter on the premises and sell them at
public auction, and to retain out Of the
money thus raised the amount due, and to
pay the overplus, If any, to the mort
gagor. The difference between the right
annexed by law and that given by this
covenant consists in this: that in the
former case the right of sale must be ex-
ercised, under the directions of the court
of chancery, upon such terms as IL shall
prescribe, and the sale made by an agent
of the court; in the latter, the sale is to
be made by the party himself. But even
under this covenant the sale made by the
party is so far subject to the supervision
| of the court that it will be set aside, and
new one ordered, if reasonable notice Is
: not given, or If the proceedings be regarded
in any respect as contrary to equity and
! Justice. There is, therefore, in truth, but
little material difference between the
rights of the mortgage, with or without
this covenant. The distinction consists
rather in the form of the remedy than in
the substantial right" SC. But I submit,
had the sale been devolved, as under our
trust deed, upon disinterested third
party, regarded as the agent Of both
debtor and creditor, this covenant would
have been deemed by the court deciding
this case, if not conclusive of it, at least
far more significant and decisive. But the
| gist of this decision was the incompetency
of the Legislature to enlarge the estate Of
a mortgagor after decree Of foreclosure,
or to clog the sale with conditions that
might suspend or defeat it. This, too, was
where the remedies sprung from the courts,
and were necessarily ordained by the Le-
gislatnre; and in this respect 1t was mate
rally dissimilar from the case at bar,
where the parties had instituted their own
remedies by private contract, and had
avoided all recourse to law. s
The principle of this decision was ex-
tended TO the case Of an execution In Nc
Cracken Us. Hayward e How, 60s). 1t
was decided in that case that law Of ILL
nois forbidding sale under execution un-
less the property brought two-thirds of its
valuation, according to the opinion Of
three householders, was unconstitutional
and void. These two cases have been fol-
lowed and approved by o long series Of do
cisions of the Supreme Court. (Gantly's
lessees Us. Ewing, 8 How, 707; Planters
Bank Us. Sharp, 6 How, Sol; Curran Us.
State of Arkansas, Is How, 3l9; Howard
Us. Bugbee, a How, 46; Hawthorne us.
Cali, Q Wallace, l0.) From these authors
; ties, and nearly in their language, de-.
4 duce the settled rule Of that court to be
this: that wherever a subsequent law Of.
fects to diminish the duty or to impair the
right. it necessarily bears on the obligation
of the contract in favor Of one party to
the injury of the other; hence any law
which, in its operation, amounts to q de-
NAL or obstruction Of the rights accruing
by q contract, though protesting to act
only on the remedy, is directly obnoxious
to the prohibition Of the Constitution and
wherever sale is required by the term.
or law of g contract, no law can obstruct ol
clog it with new conditions without affect.
ing the obligation Of the contract; for II
can be enforced only by sale, and the
prevention of such sale is denial Of q
right" We are bound by these decisions
in the Interpretation of the Constitution o.
| tho Ur;taa Skafas nd mead NOT 90 furfha,