Newark Savings Institution v. Forman

THE CHANCELLOR.

This cause and two others (foreclosure suite) stand as on demurrer, by order of the court, upon the claim aiid prayer of the bills for a personal decree for. deficiency, which is sought, in two of them, against a person who assigned to the complainant the bond which the mortgage was made to secure, guaranteeing payment. In the other it is prayed against the obligor in the bond, to secure payment of which the mortgage was made. In the two eases first mentioned, the mortgages were given in 1873, and in the last the mortgage was given in 1875. The question is whether, in view of the provision of the first section of the act “ concerning proceedings on bonds and mortgages given for the same indebtedness, and the foreclosure and sale of the mortgaged premises thereunder” (P. L. of 1880 p. 865), this court has jurisdiction to make such decree. That section is as follows:

“ In all proceedings to foreclose mortgages hereafter commenced, no decree shall be rendered therein for any balance of money which may be due complainant over and above the proceeds of the sale or sales of the mortgaged property, and no execution shall issue for the collection of such balance under such foreclosure proceedings.”

Providing punishment for a crime, of a milder form. State v. McDonald, 20 Minn. 1S6; State v. Kent, 65 N. C. 311 ; Cooley’s Const. Dim,. (4th ed.) *267; see Elliott v. Elliott, 88 Md. 857 . Bescinding a mortgagee’s right to occupy lands during the period allowed for redemption after foreclosure. Berthold v. Fox, 18 Minn. 501 ; see Thorne v. San Francisco, 4 Cal. 127 ; Everson v. Shorter, 9 Ala. 718 ; Maynes v. Moore, 16 Ind. 116 . Reducing the time limited for an appeal. Smith v. Pochard, 12 Wis. 871 ; see Burch v. Newbury, 10 N. Y. 374 ; Palmers Case, 40 N. Y. 561 ; Jacquim v. Com., 9 Omh. 279; Willard v. Harvey, 24 N. H. 344 i Hauser v. Hoffman, 32 Mo. 334 ; Sayres v. Com., 88 Pa. St. 291, 19 Alb. L. J. 88; Atkinson v. Dunlap, 50 Me. Ill; Beaupree v. Hoerr, 13 Minn. 866 ; Qriffin v. Cunningham, 20 Oratt. 52; or, the right to redeem a mortgage, Butler v. Palmer, 1 Hill 824 ¡ Holland v. Dickerson, 41 Iowa 867 ; see Cargill v. Power, 1 Mich. 369 . Reducing the notice of sale under a mortgage. Webb v. Moore, 25 Ind. 4f Cook v. Cray, 2 Houst. 455 ; Ashuelot B. B. v. Eliot, 52 N. H. 387.

The next section is as follows:

“ In all oases where a bond and mortgage has or may hereafter be given for the same debt, it shall be lawful to proceed first to foreclose the mortgage, and if, at the sale of the mortgaged premises under said foreclosure proceedings, the said premises should not sell for a sum sufficient to satisfy said debt, interest and costs, then and in such case it shall be lawful to proceed on the bond for the deficiency ; and that in all suits on said bond, judgment shall be rendered and execution issue only for the balance of debt and costs of suit.”

The third section is as follows:

“If, after the foreclosure and sale of any mortgaged premises, the person who is entitled to the debt shall recover a judgment in a suit on said bond for any balance of debt, such recovery shall open the foreclosure and sale of said premises, and the owner of the property at the time of said foreclosure and sale may redeem the property by paying the full amount of money for which the decree was rendered, with interest to be computed from the date of said decree, and all cost of the proceedings on the bond; provided, that a suit for redemption is brought within six months after the entry of such judgment for the balance of the debt.”

I have quoted the second and third sections because it is insisted by the complainant’s counsel that the court should, in construing *439 tbe first, take into' consideration the constitutional objection to which, he insists, the second and third are liable, and consider the three together. But the first is clearly independent of the other two. It is a simple enactment, intended to deprive the ■court of the power to enter a personal decree for deficiency in a foreclosure suit, and it may therefore stand alone. It is urged that that section cannot, without a violation of the complainant’s constitutional rights, be applied to these suits, inasmuch as the bonds and mortgages were given prior to the passage of the act, and the constitution prohibits the legislature from passing any law depriving a party of any remedy for enforcing a contract, which existed when the contract was made.

Taking from a court of law, by special statute, the determination of matters ■of law in a particular case. Bank of Ky. v. Schuylkill Sank, 1 Pars. 180. Taking away the remedy in equity against the representatives of a deceased partner when the survivor is insolvent, and transferring it to law. Bartlett v. Lang, 2 Ala. 401 ; Paschal v. Whitsett, 11 Ala. 472 . Taking away a resort to equity to remove the apparent lien of a void assessment. Lennon v. New York, 65 N. Y. 361 . Giving a court of law jurisdiction where a person is a partner in two firms, -one of which is plaintiff and the other defendant in a suit at law. Hepburn v. Curts, 7 Watts 300 . Providing that only an action on the case could he maintained to recover ■damages for the escape of a debtor. Thayer v. Seavey, 11 Me. 284 . Giving courts of quarter sessions exclusive jurisdiction over petit larceny committed a second time. People v. Bawson, 61 Barb. 619 . Giving the court of common pleas exclusive jurisdiction over naturaliza-tions. Beavin’s Petition, S3 N. H. 89. Whether a statute providing that no action can be maintained for liquors sold, is constitutional. JReynolds v. Geary, 26 Conn. 179 ; Opinion of Justices, 25 N. H. 539; Lord v. Chadboume, 4% Me. 439; Beebe v. State, 6 Ind. 501 ; Cooley’s Const. Lim. {4th ed.) *583. Whether a lien law can be repealed so as to divest liens already acquired, see Streubel v. Milwaukee R. R., Wis. 67; Wabash Qanal Co. v. Beers, 2 Blaek 446; Weaver v. Sells, 10 Kan. 609 ; Doellnery. Rogers, 16 Mo. 340 ; Hall v. Bunte, 20 Ind. 304 ; Krost v. Ilsley, 54 Me. 345 ; Evans v. Montgomery, 4 Walts <& Serg. 218; Templeton v. Home, 82 III. 491; Martin v. Hewitt, 44 Ala. 413 ; Brooks v. Memphis, 3 Cent. L. J. 356; Bailey v. Mason, 4 Minn. 546 ; Bangor v. Coding, 35 Me. 73 ; Watson v. N. Y. C. R. R., 41 H. Y. 157; Christman v. Charleville, 36 Mo. 610 ; Purmort v. Tucker Co., 2 Col. 411 ; Allen v. Hain, 63 Me. 532 ; Coddington v. Beebe, 5 Dutch. 550.

*439 Up to the passage of the act of 1866 {Rev. p. 118 § 76), the fifth section of which provides that it shall be lawful for the chancellor, in any suit for the foreclosure or sale of mortgaged premises, to decree the payment of any excess of the mortgage debt above the net proceeds of the sales by any of the parties to such suit who may be liable, either at law or in equity, for the payment of the same, provided there be a prayer to that effect *440 in the bill of complaint, no personal decree for deficiency was made in any foreclosure suit where there was a remedy at law,, but only when there was no remedy except by means of equitable subrogation. And it is believed that the first suit in which a personal decree for deficiency was made in this court, even on that ground, was the case of Klapworth v. Dressler, 2 Beas. 62, decided in 1860. Since the passage of the act of 1866, the court has exercised jurisdiction in accordance with the above provision of that statute. Still, during all that time the remedy at law has existed, as it still does, against the obligor of the bond secured by the mortgage, and against any guarantor 6f the bond. So far, therefore, as such persons were concerned, the remedy given in equity was cumulative merely, and the first section of the act of 1880 is a mere repealer of the fifth section of the act of 1866, The taking away of the remedy in equity in cases where a complete remedy at law of the like sort exists (as where the decree is prayed against the obligor in the bond or a guarantor), obviously only deprives the party of one of two remedies of a like character. It does not deprive him of any remedy more effective than the legal one; for the proceeding to collect the money after the decree for deficiency is the same as the remedy on a judgment at law. It does not deprive him of a *441 remedy more speedy than the legal one, for the decree for deficiency is merely a contingent one until after the sale of the mortgaged premises shall have taken place, and until then constitutes no lien on the defendant’s land. Bell v. Gilmore, 10 C. E. Gr. 104. The remedy in equity may be more economical. The taking away of the remedy in equity does not deprive the party of any resort to person on property for the collection of his debt. It does not even, as before stated, compel him to have recourse to a less rapid proceeding. The legislature may make laws which incidentally affect the pursuit of remedies for enforcing existing contracts; as, for instance, -such as regulate the admission of evidence, the course of practice in the courts, the mode of conducting sales under judgments and executions, and altering the forms of action, or prescribing periods for the limitation of actions within a reasonable time. Rader v. Road District, 7 Vr. 273 . The act under consideration leaves the complainant a substantial remedy (of the same kind as that taken away), according to the course of justice, as it existed when the contract was made a remedy, which is not only of the same sort, but is even more efficacious than that which it takes away. It has only taken away one of two remedies of a like character, one at law and the other in equity, and that is no contravention of the complainant’s constitutional right.

Whether execution can be stayed or suspended, conditionally, on judgments rendered on pre-existing contracts, Bronson v. Kinzie, 1 How. 311 ; McCracken v. Hayward, 2 How. 608 ; Moore v. Fowler, Hempst. 536 ; Huntzingerv. Brock, 3 Grant’s Cas. 243; Williams v. Waldo, 4 HI. 264; Smith v. Bryan, 34 111. 364; Farnsworths. Vance, 2 Coldw. 108 ; Chadwick v. Moore, 8 Watts &Serg. 49;Lou-isiana v. New Orleans (U. S. S. C.), 22 Alb. L. J. 496 ; Edwards v. Kearzey, 74 N. C. 241 , 96 TJ. S. 595 ; Webster v. Rose, 6 Heisk. 93 ; Cooley’s Const. Lim. (4th ed.) *292; Kentucky v. Williams, 22 Alb. L. J. 457; Davidson v. Wiley, 31 Ala. 452 ; see, also, 7 Cent. L. J. 363; Coolers Const. Lim. *292, *361. — Rep.