Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1874-11-20
our MoRraAeE LAWS.

We need something more than mere
legislation for the remedy Of existing
defects; we need also prompt construc-
ton and enforcement in the courts, and
a strong public opinion sustaining both
legislation and judge. Confidence is a
plant Of slow growth. For the past
twenty-one months there has stood
upon our statute books law expressly
designed to make real estate available
as collateral 1t was passed Feb. IS,
1878, and approved by the Governor
ten days after. For the benefit of our
readers we reproduce it entire from the
Acts of Tennessee, 1873, pages IL, II:
An act 10 regulate the g anting Of injunctions
TO stay the sale OF real estate pledged Tor tne
payment # loaned moneys
Section /. Be it enacted by the General
Assembly Of the State of Tennessee, That
no Judge OF Chancellor shall grant an in
junction to stay the sale of real estate con-
veyed by deed of trust or mortgage. with
power of sale executed TO secure the pay
ment Of loaned money, unless complainant
gives twenty days notice to the trustee or
mortgages Of the time when, place where,
and Of the Judge or Chancellor before
whom. said application for injunction is TO
be made, and no Judge or Chancellor shall
act upon the said application unless The
same is accompanied by proof, evidence oy
return of a sheriff or constable or attorney,
that said notice has been served on the
said trustee or mortgagee, or he is not to be
found in the county of his usual place OF
residence, or is q nonresident Provided,
that in order that tie complainant may
have time to give the required notice, the
sale of the property so conveyed shall be
postponed until the Judge or Chancellor
acts upon the application for injunction and
makes his orders in the matter.
Sec. 2 Be il further enacted, That the
party applying for relief in the cases .aiQrs7
secured aforesaid, has been paid, or any cir
cunstanees of fraud which vitiate the con-
tract, and after the reading of the bill in
the hearing Of the trustee or mortgage, if
he choose to appear before the Judge or
Chancellor, the said trustee or mortgage
may have the right to postpone proceedings
not more than ten days, during which time
he may file his answer before the same
Judge or Chancellor, and then said Judge
or Chancellor shall, upon said bill and an
swer, hear said cause at chambers, as upon
motion TO dissolve the injunction, his deci-
sion being authenticated by written de-
cree, which decreetogether with the
bill, answer and exhibits, shall be
enclosed in sealed envelope,
to the clerk Of the court in which
the bill is filed; said decree to constitute
part of the record in the cause in eonfoT-
nifty to the terms Of which, said clerk may
take bonds from either party, or execute
any other order as adjudged in said
decree.
Sec. 5. Be il further enacted, That this
act take effect from and after its passage,
the public welfare requiring it.
Though the above has been the law
for now nearly two years, 1t has GER
tainly failed Of the intended effect. We
can assign no reason except ignorance
of its existence or a want of confidence
in its practical operation. Lawyers
viii perceive readily how the enactment
operates against the procuring Of in
functions on frivolous pretenses. We
are told that this law is almost identical
with that of Missouri, which has work
ed 50 satisfactorily. But the question
remains, whether the law VIII receive
the same construction and prompt ex-
ecution in our courts as in Missouri.
1t is this which gives pause to our
home capitalists as well as strangers.
There remains vested in the Judge
or Chancellor a measure of discretion
that may be stretched Indefinitely,
Judging by past experience. If we
should say there is too much equity IN
our law, the paradox might be misun-
derstood; but when we say there is too
much chaRcery in it, all will catch our
meaning. Under the shield of prece-
dents thousand years old, excuses for
delay are set up, such as may have
been proper enough as precautions
against the working Of injustice in the
days that preceded the old stage-coach.
The modern merchant wants something
more in consonance with the progress
marked by the locomotive and the tel
egraph. Contracts are to-day made by
cable between two continents. When
it comes to settling these contracts,
must they depend on the slow print
tive processes born Of ages before the
mariners compass enabled ships to
venture beyond sight Of land?