Lincoln County leader. [volume] (Toledo, Lincoln County, Or.) 1893-1987, 1897-09-30
THE MORTGAGE LAW


preme Court.
olympia, Wash, Sept. 27.-Tbe Sill
preme court today affirmed Judgment
IN the case OF Nathaniel r. Swinburne
respondent, VS.. the Sheriff of Pierce
county, appellant-a case that involved
the legality or application of the act
passed by the last legislature relating
TO the sale of property under execution
ana decree, and the confirmation of
sheriffs' sales.
Inc case was appealed from the su-
perlor court of Pierce county, when a
peremptory writ of mandamus was
granted against the sheriff, command
ing him to proceed with the sale under
a special execution and order, issued on
June "a, 1897, in the case of Swinburne
VS.. Delane, and to advertise certain
mortgaged property for sale to satisfy
the Judgment in the said cause, with :.
out appraisement or without recurring
either the Judgment creditor or debtor
to fix value upon the mortgaged prop
erty as minimum price for sale, and
10 proceed at once under the old law
regarding such sales, without regard to
the recent act of the Legislature regulat-
ing such matters.
The respondent contended:
First-That neither the title nor the
body of the act sustained the conten-
tion that the law applies to foreclosure
of mortgages.
Second-That it was not the intent
OF the legislature to make the law retro
active; and
Third-That, if the law does apply
to mortgages and it was intended to be
retroactive, that portion relating to a
years stay of sale and the provision for
fixing valuation are unconstitutional,
because obnoxious to section 10 of ar
ticle OF the constitution OF the United
States regarding impairment of con-
tracts.
Regarding the first contention, the
supreme court holds that it was evil
IDENTIFY the intent to include mortgages
as well as mortgages sold under execu-
tion. Also, that it was the intention
of the legislature to make the provi-
sions Of this act retroactive.
In holding the act unconstitutional
in its application to contracts made
prior to the passage of the act, the
court devotes some attention to the
principle of the inviolability of con-
tracts, which is founded upon honesty
and good faith, supported in ethics as
we'll as law. II the value of a contract
is deteriorated or lessened by the pas
sage of an act, the obligation of the act
is most certainly impaired. 1t is a
principle of law that the law which is
in existence at the time q contract is
made becomes part OF the contract.
In this case it was expressly stipulated
in the mortgage that the law in force
at the time the contract was made
should become part of the contract,
but in the absence of such stipulation
the effect would be the same. Under
the law, when the contract was made,
the mortgage had right to the sale
of this land at once upon the issuance
of his execution, subject only to re-
demption. This was valuable right,
and was no doubt taken into consider
alton by the judgment creditor, or in
this case the mortgage. The law now
compels him to wait more than year
after judgment before he can have the
same made, and, says the court, it
seems beyond controversy that, as to
contracts, this provision of
the law is void.