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

FEBRUARY 20, 1868.
sure or redemption, nor sale under the di
rection and terms of the court, and by it.
officers. But its design was to avoid the
processes Of the law, and to confde to i'm.
partial agents summary means of realizing
the objects of the trust. Had the parties
by the nature Of their agreement, as il
case of mortgage, been thrown upon the
courts for redress, they might have been
amenable to the control which the Legis.
lature possesses over judicial remedies
bnt when they have, by their own stipula-
tions, and for very obvious reasons, sought
to preclude themselves from such resort,
the debtor cannot avail himself of this
suspension of sale without altering the
terms of his contract and violating the in
tentions with which it was entered into.
What is deed of trust It is form OF
security which has, in our practice, super
seded the mortgage and doubtless for the
very reason that it does not require the
Intervention of the courts. The introduc-
tion of trustees as impartial agents of the
creditor and debtor admits of convenient,
cheap, and speedy execution Of the trust,
and involves none of the expenses
and delays attendant upon mortgages.
At an early period it met with some re-
sistance from the court and the bar, though
feeble and Intellectual. It was deprecated
as an engine Of oppression in the hands of
the creditor. It was denounced as a
pocket Judgment. Where the creditor was
trustee it lost its peculiar character, and
was treated as a mortgage. Upon the
false assumption that the trustee was but
the agent of the creditor, it was urged, in
upon the court in the case of
Moss Us. Norvell Is Num-, 170,) that deeds
of trust we're nothing but mortgages, and
could only be enforced by bill in equity.
But this pretension of counsel seems to
have received no countenance from the
court. 1t is now fayorite security for
the payment of money, closely interviewer
with the transactions of business, and
firmly established by the practice of the
country ard the sanction of the courts.
1t has doubtless aided credit, facilitated
the collection of debts, and saved to the
debtor the costs of legal proceedings. But
if its convenience and advantages were
less, and its evils overweighed these, there
would be nothing in such considerations
to loosen the bonds which the debtor has
chosen to put upon himself. It is emil
neptly self-erecuting contract. All the
are appointed by it for
its final discharge according to the de-
clared intentions Of the parties. The deed
now before US is Taylor's contract, that
upon default sale of his property shall be
had, under prescribed terms, for the pay
ment of his creditor or his assigns, sc.
The trustees and creditor are purchasers
for value. The latter has the privilege of
requiring the former, under the stipulated
terms and conditions, to make his money
by sale; and the grantor in the deed has
obliged himself thereto by his own delibe-
rate covenants. How, then, can that sale,
when properly ordered, be suspended for
8 fixed term without violating the inten-
tions of the parties and destroying the
obligation of their contract? Shall it be
said that a sale is remedy that may be
likened to legal process, and as such liza
BILE to be changed and modified by the
legislature? If so, there is at least this
difference: that it is a remedy of
the party's own appointment, and the very
essence of his contract. 1t cannot he
segregated from it and treated as an eX-
trinsic remedy within the pale of legisla-
tive jurisdiction. Strip from a deed Of
trust this feature of sale, and it is mean
ingless. 1t loses its characteristic and
vital principle. The whole deed is one
entire contract, all whose covenants are
and have a common relation
and bearing upon the main, central
design of the instrument-namely, the
enforcement of the trust in pals with
out suit at law or in equity. But
SUPPOSE this version is wrong, and
hat you may separate it into, /, a
lien for the security of the debt and,
3, q remedy for its collection. | am
still at a loss for any real, substantial
analogy to the judicial remedies which are
exempted in a certain sense and with GER
tain qualifications from this prohibitory
clause. The one arises out of the contract
itself; the others are the offspring of the
legislative will, and pertain to the judicial
81 stem of the State. From this analysis
of this instrument I infer with confidence
that there is no foundation for the argu-
ment of the appellants counsel that this
deed is not contract, but nothing but
remedy in the meaning of that controverted
and indeterminate doctrine as to the limits
of legislative power over remedies as dis
from the obligation of contracts.
The authorities that were cited in support
Of this position, as that the recital in q
deed of trust does not change the dignity
of debt thereby secured, and that there
are well.established principles of equita-
bic jurisdiction over the execution OF such
deeds, do not tend to prove that these in
struments are regarded or treated as RENE
dies, and divested of the attributes of con-
tracts. It is very true, as remarked by
Justice johnson in Ogden Us. Saunders,
that "in an advanced state of society
all contracts Of men receive a rela-
tive, and not q positive, Interpretation.
The State construes them, the State
applies them, the State controls them, and
the State decides how far the social exer-
else of the rights which they give over
each party can be justly asserted" This
therefore, attaches to them as
contracts and it is mistake to suppose
that such judicial cognizance is at all pre-
dicated of them as remedies, or justified on
any such pretext.
Here, by the special terms of the deed,
and according to the intentions of the par
ties, the sale should have taken place, as
advertised, on the 4th of May, 1866; but
the law steps in and postpones it by one
actto 1st OF January, 1868, and by another
to lst of January, 1869. Does not this in
tervention plainly defeat the agreement
of the parties and the obligation of the
contract7 1t was admitted in argument
that if the Legislature had undertaken to
protract the maturity of the notes and the
happening of the default it would have