The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1898-02-16

raas0a,sSlly bs slx.a on rsals ard Droara
lore On 81 gz-. stn ed. Vol. i. sec 49,
TnSse We Fail. - ind. gill ard II SUBJ
SANTA part Of the agreement necessary
sf0f the sszsflfy OF tire fil9rfgzgor should
2 b. enforced mortgage Ia the form Of q
deed with separate defsassncs. the deed
giving immediate possession ard tbs right
% the rents ard profita. can doubtless be
gwen. and il could be mad. 10 take effect
apon a default and foreclosure. But 1t
does not follow that such latter stlpuia-
; slo<ss must D. enforced In all eases. Courts
az equity have always exercised a control
oysr sales Of property even 20 the extent
~ cisregarding the silpuiations Of the
!, oarties. Rents and profits nisas he ap-
rIlec toward the satisfaction OF z mortgage
debt In the absence 0, such a stipulation.
- Is sometimes done where a receiver in
4 arpcinted before or after default nor do
vs say that IL would be necessary that q
receiver should be appointed therefor in
all cases These are matters over which
the court has control. and may ~ may rot
e.force as the justice Of the particula~ cas-
eeens TO demand The siIpuIations there
for MAJ be ia thu nature Of forfelsures
which are not favored. On similar prin-
seple s,ipglat.onk regarding the time Of
! payment where IL is not OF the essence OK
the contract and as 10 damages. viii not
always be enforced tFomeroy.s Ea. Jn-
: ia. Vol !. I'd ed, secs. 4s5, AZ: Sutherland
or Damages, Vol. l. "a ed, secs. 70, 2sil
TITS IL familiar doctrine. The stipula-
cons In this mortgage 10 rents and
profits add little. IL anything. to the xtipu-
ktIon giving immediate possession after
the rendering of the decree The right TO
: possession would take the rents and the
hw now would compel the application Of
the profits 10 the debt fn case OF redemp-
ton. Il may have been out an attempt in
this Instance 10 esade the law relating 10
poxSesSion during the redemption period,
not a; all necessary for the protection Of
: the mort ssee nor substantial part Of the
contract. II so the mortgagor could not
waive the right In the instrument creating
J TIE debt or before default generally when
the situation becomes fixed and he II d.
rectiy confronted with It's effects. There
swas no showing In this case that the land
was Inadequate security for the debt. At
tss default the Law would permit waiver.
A debtor might waive his exemptions By
failing TO claim the same after levy. This
law declares a public poiiey and establish
IS a salutary rule While Il operates Tor
the benefit OF debtors. IL also benefits the
public By benefiting large number OF ci,i-
laws preventing waivers In Insurance poll
cses relating 10 agents and otherwise
which are We'll known. and also declaring
asser what performances life insurance poli-
eies shall be nonforfeitable regardless OF
a.ipulaiions The Law permits a mortgage
Of homestead and IL might be a matter
OF public policy that the owner should not
be turned out Of possession Immediately
upon foreclosure, lie might surrender
possession after default and sale but not
bs allowed TO s,ipalate therefor In the IN
Knss,tle W. Newcomb. Il II. y. ass: penshs
vs.. Davis. % Z. s.. ss7; L. ID. q X vs..
Walker, z Am; Dec: Isl. Mills vs.. BEN
ne<t. - Tenn. ell; Waters vs. Randall q
Met, tIs. Queen ms. Co VS. Leslie "a ~
z, LV'z. cieshorn VS.. oreeson, Y Ga. 3is.)
These matters must be left with the
court. and there IL nothing presented in
this case 10 warrant one disturbing the
finding OF the court In thai particular. This
/ .s9 d,sposss Of the stipulation for an Inn
ths time as heretofore stated
"Aegsrding the act relating 10 the pay
ment OF obligations Iaws 1897. p. ST. de-
sire merely 10 announce the cancIua on
] reached by the other members of the court
: as ] understand H. viz. that Il is a sub
Jet upon which state canEot lcglslate,
but belongs exclusively 70 the sgsnera! gov
eminent. In It's practical effect Il is OF
no consequence. although the principle IL
an important one. The precise point as to
whether state can provide that no con
J tract shall be enforced as payable In any
particular money. but may be discharged
Y any KIND Of lawful money regardless OF
sence OF national iegisiatlor perm,ttjnv
such contracts does not seem 10 have been
decided elsewhere Personally from thu
limited examination have given il In view
%. It's present at least isconseGuential eff
fset and the opinion % the majority I can
see 10 objection to sustaining such a law
. But II follows from the holding of the
other members OF the court that this con-
tract must be enforced according 20 lis
terms, and tia, the act Is imperative.
Z. We are all ~ the opinion that the act
flss4X
p, SD must stand. THIS prescrihss meas
suFe OF public policy. In the absence OF any
sts'Nte oroH the subject X would be a
matter over which the ceurts would have
eohttol, AZ least 10 Tho extent of refusing
10 ALLOW uncnnscionahle fees. II il also
We. settled that where NO attorney has
oeen employed there can be no recovery
got ar attorneys fee In the case and II
would follow therefrom that only n reason
able compensation should bs allowed
Where ono Is employed IL - Intended As
nsaftrr OF costs 10 cover the expenses of
SUI The practice Of allowing the parties
% III the amount of such fees under the
former statute was abused more or less
excessive fees were sometimes fixed and
IL commended In the hriers tina, mort
kaSes under arrangements made with At.
teraeys were occasionally foreciosess for
= muse less sum. the morigagee retaining
xf aianre This certainly was "A repre-.
hrasiolo practice, and one not 10 be foler-
aied The finding OF the .ower eourt in
Ssnls respect Is Sustained.
the luu.faen. is reversed and the eaus.
fenauded for further proceedings In az
eerdance herewith
..,r. - SCOTT. c. J.
stANDERS