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a substantial remedy according to the course of justice as it existed at the time the contract was made, but shows upon its face an intention to clog, hamper, or embarrass the proceedings to enforce the remedy, so as to destroy it entirely, and thus impair the contract so far as it is in the * power of (* 290] the legislature to do it, such statute cannot be regarded as a mere regulation of the remedy, but is void, because a substantial denial of right.1
It has also been held where a statute dividing a town and incorporating a new one enacted that the new town should pay its proportion towards the support of paupers then constituting a charge against the old town, that a subsequent statute exonerating the new town from this liability was void as impairing the contract created by the first-mentioned statute ;? but there are cases which have reached a different conclusion, reasoning from the general and almost unlimited control which the State retains over its municipalities. In any case the lawful repeal of a statute cannot constitutionally be made to destroy contracts which have been entered into under it; these being legal when made, they remain valid notwithstanding the repeal.4
So where, by its terms, a contract provides for the payment of money by one party to another, and, by the law then in force, property would be liable to be seized, and sold on execution to the highest bidder, to satisfy any judgment recovered on such contract, a subsequent law, forbidding property from being sold on execution for less than two-thirds the valuation made by appraisers, pursuant to the directions contained in the law, though professing to act only on the remedy, amounts to a denial or obstruction of the rights accruing by the contract, and is directly obnoxious to the prohibition of the Constitution. So a law which Welborn v. Akin, 44 Geo. 420. But this Sedgwick, 15 Cal. 515 ; McCauley is denied as regards contracts entered v. Brooks, 16 Cal. 11; Commonwealth into before the passage of the law. v. New Bedford Bridge, 2 Gray, 339 ; Walker v. Whitehead, 16 Wall. 314. State v. Phalen, 3 Harr. 441; State v.
1 Oatman v. Bond, 15 Wis. 28. Hawthorn, 9 Mo. 389. As to control of remedies, see post, p.
5 McCracken v. Hayward, 2 How. *361.
608; Willard v. Longstreet, 2 Doug. 2 Bowdoinham v. Richmond, 6 Me. (Mich.) 172; Rawley v. Hooker, 21 112.
Ind. 144. So a law which, as to ex8 See ante, p. *193, and cases cited isting mortgages foreclosable by sale, in note.
prohibits the sale for less than half 4 Tuolumne Redemption Co. v. the appraised value of the land, is
takes away from mortgagees the right to possession under their mortgages until after foreclosure is void, because depriving them of the right to the rents and profits, which was a valuable portion of the right secured by the contract. “ By this act the mortgagee is required to incur the additional expense of foreclosure, before obtaining possession, and is deprived of the right to add to his security, by the perception of the rents and profits of the premises, during the time required to accomplish this and the time of redemption, and during that time the rents and profits are given to another, who may or may not appropriate them to the payment
of the debt, as he chooses, and the mortgagee in the [* 291] * mean time is subjected to the risk, often considerable,
of the depreciation in the value of the security.”! So a law is void which extends the time for the redemption of lands sold on execution, or for delinquent taxes, after the sales have been made ; for in such a case the contract with the purchaser, and for which he has paid his money, is, that he shall have title at the time then provided by the law; and to extend the time for redemption is to alter the substance of the contract, as much as would be the extension of the time for payment of a promisvoid for the same reason. Gantley's Paige, 484; James v. Stull, 9 Barb. Lessee v. Ewing, 3 How. 707 ; Bron- 482; Cook v. Gray, 2 Houston, 455. son v. Kinzie, 1 How. 311. And a In the last case it was held that a law authorizing property to be turned statute shortening the notice to be out in satisfaction of a contract is given on foreclosure of a mortgage void. Abercrombie v. Baxter, 44 Geo. under the power of sale, from twenty36. The “ scaling laws," so called, four to twelve weeks, was valid as under which contracts made while affecting the remedy only ; and that Confederate notes were the only cur a stipulation in a mortgage that on rency, are allowed to be satisfied on default being made in payment the payment of a sum equal to what the mortgagee might sell “ according to sum called for by them in Confederate law,” meant according to the law as notes was worth when they were made, it should be when sale was made. have been sustained, but this is on the But see Ashuelot R. R. Co. v. Eliot, assumption that the contracts are en 52 N. H. 387, and what is said on forced as near as possible according to the general subject in Cochran v. the actual intent. Harmon v. Wal- Darcy, 5 Rich. 125. In Bathold v. lace, 2 S. C. N. s. 208; Robeson v. Fox, 13 Minn. 501, it was decided Brown, 63 N. C. 554 ; Hillard v. that in the case of a mortgage given Moore, 65 N. C. 540 ; Pharis v. Dice, while the law allowed the mortgagee 21 Grat. 303 ; Thornington v. Smith, possession during the period allowed 8 Wall. 1.
for redemption after foreclosure, such i Mundy v. Monroe, 1 Mich. 76; law might be so changed as to take Blackwood v. Van vleet, 11 Mich. 252. away this right. But quere. Compare Dikeman v. Dikeman, 11
sory note. So a law which shortens the time for redemption from a mortgage, after a foreclosure sale has taken place, is void; the rights of the party being fixed by the foreclosure and the law then in force, and the mortgagor being entitled, under the law, to possession of the land until the time of redemption expires.2 And where by statute a purchaser of lands from the State had the right, upon the forfeiture of his contract of purchase for the non-payment of the sum due upon it, to revive it at any time before a public sale of the lands, by the payment of all sums due upon the contract, with a penalty of five per cent, it was held that this right could not be taken away by a subsequent change in the law which subjected the forfeited lands to private entry and sale. And a statute which * authorizes stay of exe- [* 292] cution, for an unreasonable or indefinite period, on judgments rendered on pre-existing contracts, is void, as postponing payment, and taking away all remedy during the continuance of the stay.* And a law is void on this ground which declares a for
1 Robinson v. Howe, 13 Wis. 341 ; tract." And see Smith o. Packard, Dikeman v. Dikeman, 11 Paige, 484 ; 12 Wis. 371, to the same effect. Goenen 0. Schroeder, 8 Minn. 387. 8 State v. Commissioners of School But see Stone v. Basset, 4 Minn. and University lands, 4 Wis. 414. 298 ; Heyward v. Judd, 4 Minn. 483; 4 Chadwick v. Moore, 8 W. & S. Freeborn v. Pettibone, 5 Minn. 277. 49 ; Bunn v. Gorgas, 41 Penn. St.
3 Cargill v. Power, 1 Mich. 369. 411 ; Stevens v. Andrews, 31 Mo. The contrary ruling was made in 205 ; Hasbrouck v. Shipman, 16 Wis. Butler v. Palmer, 1 Hill, 324, by 296. In Breitenbach v. Bush, 44 analogy to the Statute of Limitations. Penn. St. 313, and Coxe v. Martin, The statute, it was said, was no more 44 Penn. St. 322, it was held that an in effect than saying : “Unless you act staying all civil process against redeem within the shorter time pre- volunteers who had enlisted in the scribed, you shall have no action for national service for three years or a recovery of the land, nor shall your during the war was valid, during defence against an action be allowed, the war" being construed to mean provided you get possession.” And unless the war should sooner termiin Robinson v. Howe, 13 Wis. 346, nate. See also State v. Carew, 13 the court, speaking of a similar right Rich. 498. A general law that all in a party, say: “So far as his right suits pending should be continued of redemption was concerned, it was until peace between the Confederate not derived from any contract, but States and the United States, was was given by the law only; and the held void in Burt v. Williams, 24 time within which he might exercise Ark. 94. See also Taylor v. Stearns, it might be shortened by the legisla- 18 Grat. 244 ; Hudspeth v. Davis, 41 ture, provided a reasonable time was Ala. 389; Aycock v. Martin, 37 Geo. left in which to exercise it, without 124; Coffman v. Bank of Kentucky, impairing the obligation of any con 40 Miss. 29; Jacobs v. Smallwood,
feiture of the charter of a corporation for acts or omissions which constituted no cause of forfeiture at the time they occurred. And it has been held that where a statute authorized a municipal corporation to issue bonds, and to exercise the power of local taxation in order to pay them, and persons bought and paid value for bonds issued accordingly, this power of taxation is part of the contract, and cannot be withdrawn until the bonds are satisfied ; that an attempt to repeal or restrict it by statute is void ; and that unless the corporation imposes and collects the tax in all respects as if the subsequent statute had not been passed, it will be compelled to do so by mandamus. And it has also been held that a statute repealing a former statute, which made the stock of stockholders in a corporation liable for its debts, was, in respect to creditors existing at the time of the repeal, a law impairing the
obligation of contracts. In each of these cases it is evi[* 293] dent that substantial rights * were affected ; and so far as
the laws which were held void operated upon the remedy, they either had an effect equivalent to importing some new stipulation into the contract, or they failed to leave the party a substantial remedy such as was assured to him by the law in force 63 N. C. 112 ; Cutts v. Hardee, 38 empting soldiers from civil process Geo. 350; Sequestration Cases, 30 Tex. until thirty days after their discharge 688. A law permitting a year's stay from military service was held valid upon judgments where security is as to all contracts subsequently engiven was held valid in Farnsworth tered into, in Bruns v. Crawford, 34 v. Vance, 2 Cold. 108 ; but this de- Mo. 330. And see McCormick v. cision was overruled in Webster v. Rusch, 15 Iowa, 127. A statute susRose, 6 Heisk. 93 ; s. c. 19 Am. pending limitation laws during the Rep. 583. A statute was held void existence of civil war, and until the which stayed all proceedings against State was restored to her proper revolunteers who had enlisted during lations to the Union, was sustained the war,” this period being indefinite. in Bender v. Crawford, 33 Tex. 745. Clark v. Martin, 3 Grant's Cas. 393. Compare Bradford v. Shine, 13 Fla. In Johnson v. Higgins, 3 Met. (Ky.) 393. 566, it was held that the act of the 1 People v. Jackson and Michigan Kentucky legislature of May 24, 1861, Plank Road Co., 9 Mich. 285, per which forbade the rendition in all Christiancy, J. ; State v. Tombeckbee the courts of the State, of any judg- Bank, 2 Stew. 30. See Ireland v. ment from date till January 1st, 1862, Turnpike Co., 19 Ohio, N. s. 373. was valid. It related, it was said, 2 Van Hoffman v. Quincy, 4 Wall. not to the remedy for enforcing a 535. See also Soutter v. Madison, 15 contract, but to the courts which Wis. 30; Smith v. Appleton, 19 Wis. administer the remedy; and those 468. courts, in a legal sense, constitute 3 Hawthorne v. Calef, 2 Wall. 10. no part of the remcdy. A law ex
when the contract was made. In Pennsylvania it has been held that a statute authorizing a stay of execution on contracts in which the debtor had waived the right was unconstitutional ;1 but it seems to us that an agreement to waive a legal privilege which the law gives as a matter of State policy cannot be binding upon a party, unless the law itself provides for the waiver.2
Where, however, by the operation of existing laws, a contract cannot be enforced without some new action of a party to fix his liability, it is as competent to prescribe by statute the requisites to the legal validity of such act as it would be in any case to prescribe the legal requisites of a contract to be thereafter made. Thus, though a verbal promise is sufficient to revive a debt barred by the Statute of Limitations or by bankruptcy, yet this rule may be changed by a statute making all such future promises void unless in writing. It is also equally true that where a legal impediment exists to the enforcement of a contract which parties have entered into, the constitutional provision in question will not preclude the legislature from removing such impediment and validating the contract. A statute of that description would not impair the obligation of contracts, but would perfect and enforce it. And for similar reasons the obligation of contracts is not impaired by continuing the charter of a corporation for a certain period, in order to the proper closing its business.5
State Insolvent Laws. In this connection some notice may seem requisite of the power of the States to pass insolvent laws, and the classes of contracts to which they may be made to apply. As this whole subject has been gone over very often and very fully by the Supreme Court of the United States, and the important questions seem at last to be finally set at rest, and moreover as it is comparatively unimportant while a federal bankrupt law exists, we shall * content ourselves with giving (* 294] what we understand to be the conclusions of the court.
1 Billmeyer v. Evans, 40 Penn. St. 4 As where the defence of usury to 324; Lewis v. Lewis, 44 Penn. St. a contract is taken away by statute. 127. See Laucks' Appeal, 24 Penn. Welsh v. Wadsworth, 30 Conn. 149 ; 426 ; Case v. Dunmore, 23 Penn. 93; Curtis v. Leavitt, 15 N. Y. 9. And Bowman v. Smiley, 31 Penn. 225. see Wood v. Kennedy, 19 Ind. 68,
2 See Conkey v. Hart, 14 N. Y. and the cases cited, post, pp. *375, 30; Handy v. Chatfield, 23 Wend. 35. *376.
3 Joy 0. Thompson, 1 Doug. 6 Foster v. Essex Bank, 16 Mass. (Mich.) 373 ; Kingsley v. Cousins, 245. 47 Me. 91.