The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1869-02-13
parties resulting from tho stipulation in the cor
| tract necessarily impairs

!. |
cipe intended to be established by the consti ution
was the invoabiity of the obligation of contracts
as the onngahon existed and was recognized by tn
Whether the law processes 10 apply to the contrac
Itself or to regulate the remedy. 1t is equally within
the truo meaning OF tho constitution, If 1t in eff
impairs the obligation of existing contrasts
In Green VS.. Fiddle 9th Wheaton, $751; the cour
said: a right TO land includes the right to ente
upon 1t, and to recover possession where withheld
Nothing could be moro clear upon principles of Law
and reason than that law which denies to th,
owner OF land remedy to recover possession of
when withheld by any person, clogs his recovery
OF 1t by restrictions conditions tending to di
mnsh an n the value of the thing recovered inpars hi
Afforded be qualified and restrained by conditions O
any kind, the right of the owner may indee subsist
but IL is impaired and rendered insecure accoi dins
to the nature and extent OF such restrictions"
In Bronson vs. Kinzie, 1st Howard, S1I, the vene
raoie Chief Justice ranev said {" Whatever belongs
merely to the remedy may be altered according to
the will of the state provided the alteration does moi
impair the Obligation of the contract. But il that
by acting on the remedy directly on the contract
t tsef In either case it is prohibited by the cons
tion OF contract, ana the rights of party under It
may. in effect. be destroyed by denying q remedy
altogether, or may be seriously impaired by burdcn-
ing the proceedings with new conditions and re-
strlsnons' so as TO- make the remedy hardly worth
Citiuk mir Justice Blackstone: "The remedial ma
OF the law ia so necessary consequence of the de-
saratory and ctory parts that laws must be very
vague and imperfect without it, for in vain would
| III.
there were no metho1 Of vring and asserting
! tnose nights. r "It is that
| part OF the municipal law" resumes the Che JUS
tice, (which protects the right. aud the obligation
by Whlch 1t enforces and maintains it, It is this pro-
| teedon which the clause in the constitution now in
question manly intended to secure and would be
unjust to the memory OF the distinguished men who
framed 1t, to suppose 1t was designed to protect
mere barren and abstract right without any practical
operation upon the business of lite."
In McCracken vs.. Hayward, I'd Howard 600, the
Supreme Court said: ''1he obligation of contract
make It, This depends on the laws in existence
when 1t :s made These necessarily referred to
IN all contracts and form part of them, offeri
me measure of obligation to perform them by one
party, and the right acquired by the other There
can be no other standard by which to understand
the extent Of either, than tnat which the terms of
the contract indicate, according to their legal settled
meaning When it becomes consumuated 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 sies
then in force
lfany subsequent law afrsct diminish the duty,
or impair the right 1t necessarily bears the obi
CATION Of the contract in favor of party to the in
jury OF the other Hence any law which, in its ope-
ration. amounts to denial or obstruction of the
rights acctuing bya contract though protesting to
act only on the remedy is directly obnoxious to the
prohibition If the constitution This principle is 40
clearly stated and fully settled in Bronson Vs. Kin
ze that nothing remains to be added to the reason
ing OF the court reference to any other
author1Ly than Is therein referred to- Abiding to
the case then under consideration, the court said:
The obligation of the contract between the parties
IN this case was to performhhe promises and under
taking contained therein The right of the plaintiff
was to damages for the breach thereof bring suit
and Obtain Judgment, and TO take out and prosecute
an execution against theTdefendant Ii the Judgment
was satisfied pursuant to the existing laws Of Illinois,
These laws giving these rights were SO perfectly
b1ndng on t. 9 defendant and as such part of the
ntrac as II they had been set forth in It's spu]a-
81 and 1ae OF the law relating ud
Any subsequent law which denies, obstructs or i'm
pairs this right by superadding the condition OF the
sale. Affects the Obligation of the contract for it
can only be enforced by The sale of the defepdant,s
property. Prevention of such sale is the denial Of
power in state Legislature may be carried to anv
extent, If exists at a II the power can be exer
uncomfortable discretion In passing laws relating to
% the %re%eSy Which ere regardless Of the effect the
In Ourran VS.. the State of Arkansas 18th How.
aa aaaaa s1s the same court says: Oae Of the ests
has by iegislat,on been DIM is Il that is yaue
the prohibition Of the constitution to be fmpaireS
AL This is not question Of degree. or manner
or cause. but OF encroaching iu any respect on its
force" Mr. Justice Curtis in the
same case says: cit by no means follows because
law affects only the remedy that it does not impair
the obligation of contract. The obligation Of the
conrast In the sense in which these words are used
which Ia recognized and enforced blythe laws and
II the law is SO changed that the of enforcing
this duty are materially impaired, the obligation Of
the contract no longer remains the same"
Judge Woodbury., of the Supreme Court, before
which this subject came under consideration in the
ease of the Planters Bank Sharp 9th Howard SAT
said "When every form OF redress on contract is
taken away, 1t will be difficult to how the obliga-
non nc oft tbs, is not inn impaired. And il
rights OF contract itself are changed or impaired 1t
comes just cs much within the spirit of the const-
away entirely as here. clogged by condition Of
any kind the right of the owner may indeed subsis
and be acknowledged. but it is impaired
In the case Of hawthorne VS.. Calf. I'd Wallace, TO-
the same court. by MIR. Justice Nelson, recognized
and reaf1rmed the principles decided in Bronson vs.
Kinzie, and the several subsequent cases of that
class. He held that the acts then under consdora-
ton 30 expressly affected the remedy of the mort
gagee as to IMPAIR the obligation ofthe mortgage
contract within the meaning OF the constitution, and
declared them void.
The decisions OF the Courts of the several States
are somewhat conflicting upon this question: but the
majority are In accordance with the rulings of the
supreme Court above cited. The decisions Of the
latter tribunal alone ore binding upon this court
ana 1t is accordance with them that the decision
In this case must be made.
In the case OF Bronson VS.. Kinze the decision was
upon statute OF Illinois. passed aftor the execution
aged property In that Stale unless 1t brought two
th'rds OF Its appraised value. The case OF Mo
oracken vs. Raj ward decided that statute Of
illinois, which provided that property levied on
under an execution should not be sold unles two
thirds ofits value was bid therefor, was void.
The facts In this case show that the judgment was
rendered more than year before the passage Of the
Homes cad law; that the only real estate owned by
the defendant is the tract of land containing about
huuNACu uOI0S AoV1ou AG sale IL
will not soil for more than twenty four hundred dol
lars although Its real value for planting purposes is
between four and Ave thousand dollars. 4
lhe Judgment was by law vested right, lien, @
contract, Had the Slate the constitutional power to
aivest the plaintiff Of his rights and vest them in the
defendant2
Upon the principles involved in this case there is
no difference between liens by mortgage and by
Judgment The former are specific, the latter gene
raj sut both are Vested, legal rights ontttling the
as will be sufficient to satisfy the demand.
IN my Judgment 90 much Of the act OF the Gene
raj Assembly as exempts any portion OF the land
levied on from sale under this execution is In con-
htct with the Constitution Of the United States and
void. y -
It Is therefore ordered that the sheriff proceed to
eell the proprty levied upon and ADVERTISED tor sale
In this case without regard to the provisions Of the
Law In relation to the homestead. passed since the
rendition OF the Judgment and that he execute the
process Of the court enforcing the Judgment accord
ing to the remedy exi ting at the time Of the rend
tion OF the judgment and the making Of the con-
tract bs!ween the parties a
January 30, 1869.