The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1888-07-29


banking principles, the primary Office of the
bank being to move the commerce of the
country, which cannot be done unless its
capital is practically within reach at all
times. The result is that while the mer-
chant receives all the aid his business re-
quires the miner, land owner and manufac-
turer are denied that assistance to which the
merits Of their several enterprises justly en-
title them. Therefore as all our available
loanng money is thus pre-empted, the non
commercial class must look beyond the
banks and without the limits of the State for
relief. But in doing this we are confronted
at the outset by two obstacles-one of which
is our restrictive statute fixing the maxi
mum rate Of interest at per cent. The
other will be noticed later. But the re-
moval Of the first obstacle will clear the
way, and by proper effort the other will
follow. The amendment Of an interest law
so as TO restore the conventional rate of 10
per cent lies with the Legislature, and for
tunately the agricultural class, and other
non-commercial industries, comprise the
majority of this body, and have the remedy
in their own hands.
Would there not be occasion for rejoicing
II by this means we should see our shattered
farms rehabilitated and smilingly give forth
of their abundance as in days gone by, our
mines belchng out their vast hidden wealth,
new factories spinning off their varied pro-
duct, and the vacant spaces in our towns and
cities filled with stately piles of brick and
mortar? But, as already observed, the in
terest law is not the only obstruction which
stands In the way OF our reaching this prize.
There Is yet another. which, though UNI
founded upon truth, has, nevertheless, for
years, operated as serious hindrance TO
land loans In Tennessee. / refer TO the deep
seated and almost universal popular notion
existing, both at home and abroad that our
laws are inefficient in the enforcement Of
land mortgages. This belief unjust, hurt
full and directly contrary to the truth, and
everyone having the welfare OF the State at
heart should take pains TO repudate it with
emphasis on every occasion possible.
The truth Is that he legal system Of Tennes-
see Is as c6odciOu in The protection Of Unrest
mcnts, and IN The reooreTy Of debts, as that Of
any State Of his Union. Orr idrs afford The
same prompt and certain means Of foreclosure
by contract through trust deed Nth poicer Of sale,
free Of redemption as ciH be found in MeW
York, Missouri, or Wisconsin.
The error mentioned had is origin IN the ldw
as Il stood preiou 20 the act Of 1873, tCien the
debtor might, without notice 20 The creditor, and
upon any pidusibi, preteri procure a fat for in
junction, restraining sales Ia such cases.
In consequence Of these abuses, that act
was passed Code sec. 5lsll whereby the
judges were forbidden TO grant injunctions
In such cases except upon twenty days no.
tice TO the adverse party, and then only
upon a showing OF merits. The act has
served cflectually 10 correct this evil, and
since then no injunction is authorized except
upon such merits as would entitle the com.
plainant TO consideration by any court in
any land.
As an indication Of the manner In which
this law is administered in Tennessee, Il will
be instructive to note one or two Of the de.
cisions OF Chancellor Cooper, who was after.
ward ono OF the most eminent judges of our
supreme bench.
In the case Of Smith vs.. Republic Life In.
surance company, ? Tennessee chanccry re-
ports, GJl, which was an application
for one Of these injunctions. he
said: ITO enable the owners OF real
estate 10 raise money by mortgage,
the laws must he such as 10 secure 90 the
purchaser good title. and TO the lender
prompt foreclosure on default The lars Of
This State ara az unerocptionai "a these ~.
gGnii az ho,e Of any Other State 10 the
Union. The defect has been In their practi.
cal working In the matter Of foreclosure,
from the ease with which injunctions could be
obtained. thus delaying sales and tempting
the debtor into expensive litigation Of no
practical benefit IN the end To obyiatc the
evil In part at least the act Of February %
1873, chapter 10, was passed by the Lcgisla.
turc.
by the first section OF this act Il Is provided
that no judge or chancellor shall grant an
injunction 10 stay the sale Of real estate
conveyed by deed Of trust or mortgage, with
power Of sale, 10 secure loaned money, ex.
ccpt upon twenty days notice 20 the trustee
or mortgage Of tho time and place Of the
application. by the second section u Il
provided that the party applying shall dis.
tlncily state whom aud 30 whom any part OF
the debt has been paid. or any circumstances
of fraud which yitiato the contract aud the
trustee or mortgage Il allowed the priyi-
lego Of hling an answer whccupon IL Il
made the duty Of the judge or chancellor
upon said bill and answer 20 hear said cause
n upon q motion 10 dissolve the injunction.
The purpose Of the statute II 10 require n
plain showing by the complainant Of a sui.
fcicnt cause for an injunction. and 10 give
the defendant an opportunity TO meet
the case by an answer. a, upon a mo.
ton 10 dissolve an injunction granted
or partc." (And Il might be added that this
answer would ordinarily dissolve the In.
junction.l In another case--Piouman W.
Saiicrwhitc, Stem, ch. 1.-The same learned
Judge ald The object Of this act was un.
doubleday 10 prevent the delays too often
lnicrposcd upon cH pafic statements between
the buach Of mortgages and trust deeds aud
their foreclosure by sale under the power
usually inserted In them. n I, notorious dat
ne rnisiag Of MONEY ~ ,rcl ,soaiiisi o. real
estate has hesR greatly rcstriciei IN hh STATE ~
ihs delays bipi inieJoiod Or iaia r,gnlaiisg
hh impo1mi bTusoh n b',si,,ss ars a. Ineg.
crpiionabie az hots ~ any other ,sier STATE.
The evil has been In the ease with which In.
functions against the foreclosure Of thcse In.
strumonts could be procured upon bill 6lcd
by the debtor Tor that purpose. The act
OF 1873 was intended 10 prevent Interference
With prompt sales under frivolous prctcxis"
Both Of these applications were Of that
character aud were refused. Thcscopinions
ar fcir'ahing In the confidence they lm.
part aud gladly avail myself Of this means
10 rescue them from the oblivion u the