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

property Iar~elv In sxeres OF enough 10
pay Ill Of his debts whether originally 80
cured or rot II Is not a marShailing q
assets or Ike settlements OF estates. as
in the cas-. OF partnership and individual
debts. Ter the originally secured creditor
world have no recourse 10 the property
left after unsecured debts are paid
''it cannot he sustained on the ground
that an undue advantages may he taken OF
~ nnwary or needy debtor where the Law
sometimes relieves him on the ground Of
pubic policy from his own stipulaiio0S.
often carelessly entered into, and where
he might be oyerreacaed q. nerwise as in
the case Of stipulation in an insurance
policy that the agent shall re deemed 10
be the agent OF the insured for an In
staih,e. He has received the amount OF
tne loan. X IL IS a case OF hiring. and he
has agreed TO return IL. IL the mortgage
~ given 10 secure payment Tor the neTes-
ssr1es OF life or tools Of trade which hs
has purchased, he has agreed 10 pay for
them. and IL is a direct primary part Of
his contract. IL does not tend To prevent
the saerifice OF real estate. for the sale
must be for the amount OF the debt or
for 10 per cent. Of the appraised value IL
IL is less. No one would contend that IL in
any way involves The police power Of the
state IL rests on none Of these grounds.W We
know of no similar law anywhere and may
safely say that none ike II has ever hsen
sustained in any state of the Union.
The results Of turbulent, restless. tenn
rorary impalse on the part OF the people
or maiori;ies in any state or community
may sometimes he reflected in conternpo-
rights of individual citizens or classes. In
such cases the people need protection from
their own h2Sty acts, State constitutions
are designed to serve as z check thereon.
Ii they do no; do this they are but a de-
lusica and a snare. When constitutional
rights are IN issue Srea; responsibility
rests upon the courts. II thew are uncon-
st1tntionu, IL is a duty To hold them So
one not 10 be avoided. IL is not n matter
or choice 10 set or not. bat a duty is i'm
posed which must De DISCHARGED. II would
seem that II any law could be an unwar-
ranfed interference with a citizens right
70 contract, this is one. II this Law could
be sustained. law absolutely prohibiting
all mortgages, debts or even the sale 81
property, could as well be. We believe the
opinion that such LAWS would be consttu-
tional Is not generally prevalent, In sup
port of the proposition favored by few.
that legislatures are practically oninipo-
tent and can interfere with the rights OF
the citizen under the constitution. imagin-
airy eases are sometimes presented. such "a
II the legislature should pass bills repeal-
ing all laws providing remedies and suhsti-
tute no others. Although the courts could
not supply them as 10 future contracts. IL
they could hold former ones In force as 10
prior contracts. and while the constitution
would afford but little protection in such
cases. IL Is true, there is yet something In
herent in the social organization itself
which prevents Them resting In the settled
good sense of the people. That any such
thing. so destructive OF society. would be
cases. practically Impossible because OF
their palpahle outrageousress. can always
be pursued To absurd ends in any direction.
Our conclusion is that this law is void as
being an undue restraint upon the liberty
of the citizen affecting his property rights.
I'VE Will next consider the act granting
Judgment debtors the right of the possess
sion OF property during the period OF re-
demption laws OF 1897 page 22sl. together
with the following clauses contained near
the end of the mortgage here in contro-
yersy:
That the purchaser at the MORTGAGE
foreclosure sale, or his successors IN inter-
est. shall have fun and complete possess
sion during the time allowed for redemp-
ton. and that the party of the first part
and his Successors In interest shall and do
hereby waive all right or claim allowed by
statute. 10 possession during the period. OF
redemption. whether such period elapse
before or after the sale. but that whenever
the property is redeemed the rents and
profits shall be accounted for TO the judy
ment debtor and credited as payment in
part or In whole of the Judgment.
That from the time OF the levy upon
the real estate mentioned in the mortgage
and the decree rendered In the foreclosure
proceedings thereon the Judgment creditor.
being the party of the second part. or his
successors In interest. shall have fun and
complete possession OF the mortgaged
premises and be entitled TO all rents and
profits OF the same. but that in case of re-
denpton such rents and profits shall DO
credited upon the Judgment
1T Is contsnded that these provisions
constitute n mortgage on the rents and
profits which is binding. a mortgage may