The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1868-02-20
THE STAY LAW.
DECISION OF THE SUPREME;
COURT OF APPEALS.
So Much or the Act Eorbidding Sales
under Deed of Trust Declared
JNCONS NSTITUTIONAL.
CONSTITUTIONAL,
ELABORATE OPINION nF THE COURT

In the Supreme Court of Appeals o.
Virginia yesterday, in the case Of Taylor
rs. Stearns ct ais, on appeal from decree
Of the Circuit Court of Richmond city
the decree OF the lower court was affirmed
BY this decision the stay law Of March
1866, so far as it forbids sales under deeds
Of trust, is declared unconstitutional and
void but the Court gave no opinion as tt
the other provisions Of tho law for stay
Of executions.
The case had been ably argued by A. II
Sands aud James Lyons, ESqs., for the ap.
pellants, and J. B. Young and John G
Williams for the appellee. The following
opinion of the court was rendered by
Judge Rives, all the Judges concurring:
Taylor vs. StearnS and als.-The ques.
tons that have been made in this case, and
discussed at such length, grow out of a
deed Of trust which the appellant gave on
the 10Th September, 1860, on his house
and lot in the city Of Richmond, then re.
Gently purchased, and conveyed to him by
deed OF the same date, to secure the un-
paid purchase money, for which he had
executed ten negotiable notes falling due
at successive intervals of six months, and
thus extending from March the I'D, 1861,
10 September 22d, 1865. The first four of
these notes were paid the remaining six
were passed in January, 1862, for value to
the appellee, Franklin Stearns, who after
wards, in view of the rapid depreciation of
the Confederate currency, refrained from
any demand of payment till the restoration
of Federal authority, and the consequent
return Of Federal money. After waiting
with the appellant for the space Of a year
thereafter, and six months after the last
note became due, he required the trustees
to sell. Accordingly, they advertised the
property for sale on the 4th day Of May,
l,C6. To prevent this sale the appellant
filed his bill, accompanied by copies of
said trust deed and said advertisement, as
exhibits 4 and B, and averring that " said
sale was, under the circumstances, in
cGuitab!e, unjust, and illegal" No other
reason was assigned for this assertion ex-
cept this-namely "At the last session
Of the Legislature of Virginia, the Gene
raj Assembly Of Virginia, impressed with
a sense of the hardship which would re-
suit from the forced sales Of property, re-
sulting in unjust and ruinous sacrifice, ex-
pressly enacted that there should not be
any sales under deeds Of trust for the pay
ment of money except in certain specified
cases, of which this is not one,) until the
lst day of January, 1861" The bill con-
cluded with a prayer for an Injunction
against the sale, which was awarded on
the 24th Of April, and the subpoena exc
cutcd on the defendants on the 1st Of May,
1866. On the 4th of June, 1866, the de-
PENDANTS filed their several answers, the
trustees denying for themselves any know
ledge of the allegations of the bill and all
interest in the suit except as mere trus-
tees; and the appellee, Stearns, respond
ing 10 what he terms the only material
allegation in the biN"-namely, the act of
the General Assembly forbiddipg sales
under trust deeds until the lst of January,
lS6S,-takes issue upon that law as void
under the Constitution Of Virginia and
the Constitution of the United States.
Previous to the fling Of these answerS-to
wit, on the Sd June, l86G,-a motion was
first made to dissolve, and was successfully
continued till the final hearing, on the 18th
day of January, 1867, which resulted in
the dissolution Of the injunction and the
dismssion of the bill. But in the mean
time, when the answers were filed, on the
4th of June, 1866, a general replication
was entered thereto on behalf of the plain
th, and on bis motion, by counsel, the
cause was set for hearing.
have been thus minute and explicit in
tracing the successive stages of this cause
that might more clearly dispose of two
preliminary objections to this decree that
seem TO have been advanced for the first
time in this court. The first of these is
predicatcd of the fact that the court had
possession of the case simply on the mo-
ton to dissolve; and overlooks the prior
aud material entry by which the plaintiff
had set down the cause for hearing. But
II il be conceded that there is a defect OF
clerical form and regularity in which this
prior entry has been ignored, and the
cause brought on apparently to hearing
On motion TO dissolve, it is assuredly
such matter as it behooved the party
Affected thereby to notice in the court be-
low, where it admitted of easy correction,
and is not an error Of substance, to be
aYalled Of on appeal.
The second Of these objections applies to
''Sh Va CApliClpuCoo iih TSo sc' "So " wy
advertisement and we are asked to view
II now in the light of authorities upon the
lnyalidity Of sales made in disregard Of
The terms of the power. But it is Suffi-
Gent answer to say that no such question
oTl@ue has been made in this case. This
advertisement is made an exhibit with the
bill; no intimation Of its insufficiency or
iegality escapes the complainant; he
Goes not allege there, as ne now does here,
hat the advertisement should state the
notes and the amounts due, 80 as to notify
aud prepare bidders for the sale. The bill
Itself dlscloses his full knowledge on that
SUBJECT, and bis ability to protect himself
ald bis friends from being ensnared by the
'asueness of the notice. 1t is, therefore,
40 40 late to start this objection for the tlrst
'@e IN this court. However such an OBJ
!ee,lon might weigh in the event OF sale,
QUO. saa actual damage resulting from an IN
sImclent advertisement of its terms, 1t is
"aV!iy lnapplicable to 3 case like the pre-
ro [l.' where the object Of the bill is to pre-
~ ,sls !, sale on grounds wholly irrespective
=. Tue advertisement. Such objections
&c &c virtually waived or abandoned by the
aTp'iaht, in the mode in which he has
saS saS'eA to conduct and manage his cause,
I u'iot cannot now be availed Of in this court.
naasg nssSihg thus disposed Of these assign
"sS VI error, We are brought to the in.