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

not !; and further, that such stlpuiatlons Q
| the parties fixing the remedy for breacl
lof their contract must govern the Chan
lcelIor, as the law of the case. The reason
ing of the court is so Apostle to ou
present investigations that Il cannot re-
frain from submitting the following copfou,
extract from it /" IF this case was not one
peculiarly circumstanced las it really isl
it would be sufficient for us to refer tc
the cases of Lapsley Us. Brashear and
Blair Us. Williams "A Lift. Rep, 34-47,) to
prove that, according to the settled course
of decision in this court, the plaintiff in
error would not be entitled to the credit
iof two years, secured by the act of AS.
sembly, because that the act in this re.
spect is in contravention of the Constitu-
ton of the United States. But it is not
necessary to rest on these decisions. They
show that the bare understanding that the
contract, when made under existing law,
includes that law in its composition pre-
cludes the operation of such an act; but
here there is no necessity of implying such
an understanding, for there is an express
agreement between the parties regulating
| and fixing the remedy between them in
the mortgage, if the estate should be sold
for the purpose Of raising the money due.
Nor is it necessary to inquire whether the
| act requiring estates to be valued, and If
they should not bring three-fourths Of that
value, directing them not be sold at all,
comes within the principles recognized in
Blair, &c., Us. Williams, and Lapsley Us.
Brashear, and is, therefore, unconstitu-
tional so far as it operates upon contracts
made before its passage. For the stipula-
ton Of the parties in this instance meets
that case, and excludes the application of
the valuation act. In the condition to
this mortgage is the following express
| stipulation
"If the said Pool shall neglect or refuse
| to pay any or all of the sums aforesaid as
they become due to the said Young, then
said Young may, by giving twenty days
| notice at the public houses in the town OF
Winchester, in writing, proceed to sell to
the highest bidder, for ready money, from
time to time, so much Of said land as will
| meet all deficiency of reconsideration money,
| with interest and all costs, and the bal
| ance after all is paid shall be paid over
to said Pool.''
Now, it will be seen that, applying the
act of indulgence by sale for two years,
| unless bank paper was taken, or the valu-
alton act either, will expressly and essen
| TALLY alter and change these stipulations
| between the parties. Either of these actsin-
corporated with and bearing upon their con-
tract would make thread, that ofsell-
| ing for ready money, Young should sell for
| bank paper at credit Of three months,
and for money at the end of two years,
and if the property should not sell for
three-fourths of its appraised value, in the
opinion Of commissioners appointed for
that purpose, he should not sell at all. To
admit subsequent act of the Legislature
thus to modify and essentially vary the
written stipulations Of the parties would
concede to the Legislature power to
make new contract and destroy
the old one altogether-a power not
assumed by the letter of the act itself,
for it only processes to operate on general
remedies. The stipulation of the parties
applies to the remedy and regulates it; fixes
its terms and its credit, and what is to be
taken in payment, and provides for an un-
conditional sale without any fixed value,
except so much ready money as the estate
would bring. 1t was competent for the
parties to make such contract. There
was no law forbidding it when it was made.
1t was then both fair and legal. How, then,
can Legislature change the words, sense,
and substance, of the agreement? 1t is true
that Young did not himself attempt to exc
cute this stipulation without the aid Of
court of equity; but this was to the benefit
of his adversary, who now complains" &c.
This extract demonstrates that that case
is an authority directly in point, and was
decided by the course of freasoning which I
have pursued. Applying its doctrine here,
am authorized to contend that this act of
March 2, 1866, makes virtual interpola-
tion in the contract, by which it adds new
condition, suspending the sale beyond the
period of default, as fixed by the parties.
[ have also found another case very
closely approximating this, as far as
I can Judge by the abstracts of it. l
regret I have not access to the re-
port of it, and must content myself with a
brief statement Of it, as derived from
treatises upon this subject. 1t is deci-
sion from Pennsylvania, and is thus quoted
in the American Law Register 1863-'64,
N. S., p. lO7: "Where the parties to q
contract expressly include in it the legal
remedy by which it is to be enforced, the
Legislature cannot pass any law to change
the remedial process agreed upon. The
defendant having expressly waived all stay
of execution, an act giving stay in all
such cases was held unconstitutional as to
such contract" (Bellmeyer Us. Evans, 4
Wright, 324.) 1t is somewhat more fully
stated in the very recent treatise of Met.
calf on Contracts, p. 334, as follows: " A
statute of Pennsylvania granted stay o.
execution under certain conditions on all
| judgments or debts upon which stay ol
execution had been or might be waived by
the debtor in any original obligation OF
contract upon which judgment had beer
or might thereafter be obtained. In case
in which debtors, by sealed instrument
authorized an entry of judgment against
them without any stay Of execution after
the day of payment it was held that this
was release of their right to stay o.
execution, and became part of their con.
tract, and that the Legislature could moi
constitutionally authorize stay Of execu-
ton beyond the limit Of that contract
| rs. G. 40 Pennsylvania State h, 324.)
1t seems to me that the parties here
by agreeing upon agencies exterior te
the courts for final satisfaction, as effect
ually precluded any interference there.
with by law as if they had expressly bound
themselves not to take advantage of an.
SUBSEQUENT legislation in conflict witt
their express understanding. The cas-
would not be aS all stronger if the parties
by reference to past or anticipated legisla
tion, had stipulated that it should in nc
wise affect their agreement. They had
constitutional guarantee for the exemptio
of their contract from legislative infrac
ton, and positive covenant on their par
to that end would have been merely ST.