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VS.

TREKKEP AWUNUUNBEYKUTIVNAU.

proved the 27th of February 1841, it was directed, that) In a recent number of this paper we announced the when any execution should be issued out of any of the J. Cact that the Supreme Court of the United States had Courts of the State, and be levied on any property real decided the Relief Laws of Illinois (and the decision is or personal or both, it should be the duty of the offi.!

cer levying such execution to summon three houseReliet of other

holders of the proper county one of whom should be i co be UNCONSTITUTIONAL. Through the kindness of chosen by such officer, one by the plaintiff and one

friend at Washington," we are now enabled to lay by the defendant in the execution; or in default of the before our readers the Opinion of the Court in exten- parties making such choice, the officer should choose

for them; which householders after being only sworn, 30. It is perhaps the most important Opinion that has

by such officer so to do, shoula fairly and impartially Deen delivered, on a constitutional question, since the value the property upon which such execution was origin of our government. It will do more to restore levied having reference to its cash value; and that they confidence than any legislation. We learn that it has should endorse the valuation thereof, upon the execú produced a great sensation at Washington, as it will tion, or upon a piece of paper thereunto attached sign

ed by them; and when such property should be offerdo throughout the country, and especially in those ed for sale, it should not be struck off, unless twoStates where valuation, stay, or relief laws have been (thirds of the amount of such valuation should be bid enacted. All such laws are nullified by this decision, therefor. It further provided among other things

that all sales of mortgaged property should be made in reference to contracts made previous to their enact

according to the provisions of that act, whether the ment; and it is such contracts alone, that prompt the foreclosure of said mortgage was by judgment at law, enactinent of such laws. All other Courts, both State for decree in Chancery. It also directed that the pro: and national, are bound by this decision. It is now visions of this law should extend to all judgments ren.

dered prior to the 1st of May 1841, and to all judgments for the first time given to the public: having been re

te that might be rendered on any contract or cause of vised for the purpose by Chief Justice Taney

action accruing prior to that day, and not to any other SUPREME COURT OF THE U, STATES. judgment than as before specified. These are in subJANUARY TERM, 1843.

stance the provisions of these acts as far as they are

material to the present controversy. Arthur Bronson, Comp't. )

On the 19th of June 1841 after the laws abovemen

tioned had been passed, the Circuit Court of the Uni John H. Kinzie and Juli

ted States for the District of Illinois adopted the ette his wife, Edmund K. Bussing and John S. i On a certifieate of divi. following rules.

"Ordered that when the Marshal shall lovy an Bussing, the President, ( sion in opinion between

execution upon real estate he shall have it appraised Directors and Company of the Judges of the Circuit en

and sold under the provisions of the law of this State the State Bank of Illinois, 1 Court of the United States

entitled “An Act regulating the sale of property," ap. , Jay Hathway, Mary Ann for the District of Illinois. eatitie

proved 27th February 1841, if the case come within Wolcott, Daniel S. Gris

the provisions of that law; and any two or three housewold, Caroline Dualam, i

holders selected under the law agreeing, may make and Alonzo Huntington. I

the valuation of the premises required." Mr. Chief Justice Taney delivered the Opinion of " Before the sale of any real estate on execution the the Court.

Marshal shall give notice thirty days in a newspaper This case comes before the Court upon a division published in the county where the land lies; and if of opinion in the Circuit Court of the United States there be no paper published in the county, then the for the District of tllinois, upon certain questions notice shall be given thirty days before the sale, by which arose in the case, and which have been certified notices as the statute requires. The Court adopt the 1 to this Court according to the act of Congress. : 8th section of the act of this State to amend the act

It appears from the record that on the 13th of July, concerning judgments &c. passed 19th of February 1838, John H. Kinzie executed a bond to Arthur Bron- 1841 which regulates the sale of mortgaged premises Bon conditioned for the payment of 84000 on the let &c. except where special direction shall be given in of July, 1842, with interest thereon to be paid semi- the decree of sale." annually; and in order to secure the payment of the į After these rules were adopted, that is to say, at said sum of money and interest, Kinzie and wife on December Term 1841, the bill filed by Bronson as the same day conveyed to the said Bronson in fee herein before mentioned came on for final hearing in siinple by way of mortgage, one undivided half part (the (

one undivided half part the Circuit Court; and thereupon of certain houses and lots in the town of Chicago, Imoved the Court for a final decree of strict foreclosure with the usual proviso that the decd should be null of said mortgage, or that the mortgaged premises and void if the said principal and interest were only should be sold to the highest bidder, without being paid; and Kinzie among other things covenanted that subject to said rule and the act referred to. This moit default should be made in the payment of the prin• tion was resisted on part of defendants, who moved cipal or interest or any part thereof, that it should be that the decree should direct the sale according to said lawful for Bronson or his representatives to enter upon rule and act. and sell the mortgaged premises al public auction, And the Judges being opposed in opinion on the and as Attorney of Kinzie and wife, to convey the same following points, to wit: to the purchaser, and out of the moneys arising from 1st. Whether the decrea in this case should be so ** such sale to retain the amount that might then be due entered as to direct the sale of the said mortgaged prehim on the aforesaid bond, with the costs and charges mises according to the said statute of the State of of sale, rendering the overplus, if any, to Kinzie. Illinois above mentioned ; or whether the same pre

The interest not having been paid, Bronson on the mises should be sold at públic auction, to the highest 27th of March, 1841, filed his bill to foreclose the bidder, without regard to the said law. mortgage. In the meantime, after the mortgage was 2nd.' Whether the decree in this case shall or shall made and before the bill was filed, the Legislature of not direct the sale of the mortgaged premises, without Illinois on the 19th of February, 1841, passed a law, being first valued by three householders, and without the 8th section of which provided that mortgagors and requiring two-thirds of the amount of the said valuajudgment creditors should have the same right to tion to be bid, according to the said act of the State redcem mortgaged premises sold by the decree of a lof Illinois. Court of Chancery that had been given to the debtors 3rd. Whether the terms of the mortgage in this and judgment creditors by a previous law passed in case do or do not require it to be excepted from the 1825, in cases where lands were sold under execution. Joperation of the rule above recited. On motion of the The law of 1825, authorized the party, whose land complainant, it was ordered and directed that this. should be sold by execution after that law took effect, cause, with said points, be certified to the Supreme to redeem them within twelve months from the Court, in pursuance of the act of Congress. day of sale, by repaying the purchase money And it is upon these questions, thus certified, that with interest at the rate of ten per cent; and the case is now before us; and the 8th section of the if the debtor did not redeem within the time limited, lact of February 19th, and the entire act of February any judgment creditor was authorized to do so upon 27th, are set forth at large in the record, as the laws the like terms within fifteen months from the sale referred to in the above mentioned rules of the Cir. This act which took effect on the first day of May (cuit Court. 1825, was held it seems not to extend to sales of mortgaged premises under a decree of foreclosure, and the ict of February 19th 1811 abovementioned was passed

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We have quoted the entire paragraph because it This brings us to examine the statutes of Illinois T shows in a few plain words, and illustrates by a lami which have given rise to this controvery. As concerns liar example, the connection of the remedy with the the law of Feb. 19, 1841, it appears to the court not to right. It is the part of the municipal law which pro.act merely on the remedy, but directly upon the eontects the right, and the obligation by which it enforces tract itself, and to engraft upon it new conditions injuand maintains it. It is this protection which the rious and unjust to the mortgagee. It declares that clapse in the contitution now in question mainly in. although the mortgaged premises should be sold under tended to secure. And it would be unjust to the me. | the decree of the Court of Chancery, yet that the equimory of the distinguished inen who framod it, to sup

table estate of the mortgagor shall not be extinguished, pose that it was designed to protect a mere barren and

| but shall continue for 12 months after the sale ; and it abstract right, without any praciical operation upon

| moreover gives a new and like estate which before had the business of life. It was undoubtedly adopted as a l no existence, to the judgment creditor, to continue for part of the constitution for a great and useful purpose.

fifteen months. If such rights may be added to the

hite It was to maintain the integrity of contracts, and original contract, by subsequent legislation, it would to rocure their faithful execution throughout this be difficult to say at what point they must stop. An Union b by placing them under the protection of the ha conferred upon others, and the right to redes

etion of the l equitable interest in the premises may in like manner | constitution of the United States. And it would but be conferred upon others, and the rigắt to re ill become this Court under any circumstances, to de. be so prolonged, as to deprive the mortgagee of the pant from the plain meaning of the words used, and to benefit of his security, by rendering the property unsanction a distinction between the right and the reme

saleable for any thing like its value. This law gives dy which would render this provision illusive and nu

to the mortgagor and to the judgment creditor, an gatory--Iere words of form-affording no protection equitable estate in the premises, which neither of and producing no practical result.

them would have been entitled to under the original We proceed to apply these principles to the case

contract. And these new interests are directly and before us. According to the long settled rules of law materially in conflict with those which the mortgagee 1 and equity in all of the States whose jurisprudence

acquired when the mortgage was made. Any such has been modeled upon the principlos of the Common

| modification of a contract by subsequent legislation, Law, the legal title to the premises in question vest.

against the consent of one of the parties, unquestionaed in the complainant, upon the failure of the mort.

bly impairs its obligations, and is prohibited by the gagor to comply with the conditions contained in the

Constitution. proviso. And at las he had a right to sue for and re

The second point certified arises under the law of| cover the land itself. But in equity this legal title is

Feb. 27, 1841. The observations already made in reregarded as a trust estate to secure the payment of the

lation to the other act apply with equal force to this. money; and therefore when the debt is discharged,

It is true that this law apparently acts upon the reme. there is a resulting trust for the mortgagor. 1. Peters

Posteri | dy and not directly upon the contract. Yet its effect 441. Conrad vs. The Atlantic Insurance Company. It

is to deprive the party of his pre-existing right to fore. is upon this construction of the contract that courts

to close the mortgage by a sale of the premises, and to of equity lend their aid either to the mortgagor or impose upon nn.conditio

impose upon him conditions which would frequently mortgagee in order to enforce their respective rights.

render any sale altogether impossible. And this law is The Court will upon the application of the mortgagor

6. still more objectionable because it is not a general one direct the reconveyance of the property to him upon

and prescribing the mode of selling mortgaged premises the payment of the money; and upon the application

in all cases, but is confined to judgments rendered and of the mortgagee it will order a sale of the property

contracts made prior to the 1st of May, 1841. The act to discharge the debt. But as courts of equity follow

was passed on the 27th of February in that year; and the law, they acknowledge the legal title of the mort.

and it operates mainly on past contracts and not on gagee, and rover deprive him of his rights at law un- future. If the contracts intendea.co.be, altected by it til his debt is paid; and he is entitled to the aid of the

had been specifically enumerated in the law, and these Court to extinguish the equitable title of the mort

conditions applied to them, while other contracts of gagor, in order that he may obtain the benefit of his the game description were to be enforced in the ordinsecurity. For this purpose it is his absolute and un- ary course of legal proceedings, no one would doubt doubted right under an ordinary mortgage deed. if the that such a law was unconstitutional. Here a particumoney is not paid at the appointed day, to go into the lar class of contracts 18 selected and incumbered with Court of Chancery and obtain its order for the sale of these new conditions. And it can make no difference the whole mortgaged property (if the whole is neces. in principle whether they are described by the names sary) free and discharged from the equitable interest

of the parties or by the time at which they were made. of the mortgagor. This is his right by the law of the

In the case before us the conflict by these laws with contract, and it is the duty of the Court to maintain

the obligations of the contract is made the more evi. and enforce it without any unreasonable delay.

dent by an express covenant contained in the instruWhen this contract was made, no statute had been

ment itself, whereby the mortgagee in default of pay. passed by the State changing the rules of law or equi. ment was authorized to enter on the premises and sell ty in relation to a contract of this kind. None such them at public auction; and to retain out of the money at least has been brought to the notice of the Court;

thus raised the amount due, and to pay the overplus and it must therefore be governed, and the rights of|

0? | if any to the mortgagor. It is impossible to read this the parties under it measured, by the rules above sta. covenant and compare it with the laws now under IL ted. They were the laws of Illinois at the time, and

consideration, without seeing that both of these acte

consideration, therefore entered into the contract and formed a part materially interfere with the express agreement of the of it without any express stipulation to that effect parties contained in this covenant. Yet the right here in the deed. Thus for example there is no covenant secured to the mortgagee 16 substantially nothing

in the instrument giving the mortgagor the right to more than the right to sell, free and discharged of the } “) redeem by paying the money after the day limited in

I equitable interest of Kinzie and wife, in order to ob. the deed, and before he was foreclosed by the decree

tain his money. Now at the time this deed was exeof the Court of Chancery. Yet no one doubts his cuted, the right to sell, free and discharged of the I right or his remedy ; for by the laws of the State then equitable estate of the mortgagor, was a part of every in force, this right and this remedy was a part of the ordinaryco.

ordinary contract of mortgage in the state, without law of the contract, without any expresg agreement of the aid of this express covenant. And the only diller. I the parties. So also the rights of the mortgagce as

ence between the right annexed by law and that given known to the laws required no express stipulation to

|| by the covenant consists in this-that in the former

by the define or secure them. They were annexed to the cas

ho Il case the right of sale must be exercised under the contract at the time it was made, and formed a part of aires

ill direction of the Court of Chancery upon such terms it, and any subsequent law impairing the rights thus

as it shall prescribe and the sale made by an agent of

the Court; in the latter the sale is to be made by the acquired, impairs the obligation which the contract im

party himself. But even under this covenant the sale posed.

made by the party is so far subject to the sapervision of the Court, that it will be set aside and a new one ordered if reasonable notice is not given, or the pro. ceedings be regarded in any respect as contrary to equity and justice. There 18 therefore in truth' but little material difference between the rights of the mortgagee with or without this covenant. The dis.

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