argument, the same rule is reiterated in language equally strong. Nothing, in short, can be more clear, upon the principles of law and reason, than that a law which denies to the owner of land a remedy to recover the possession of it when withheld by any person, however innocently he may have obtained it; or to recover the profits received from it by the occupant; or which clogs his recovery of such possession and profits, by conditions and restrictions tending to diminish the value and amount of the thing recovered, impairs his right to, and interest in, the property. If there be no remedy to recover the possession, the law necessarily presumes a want of right to it. If the remedy afforded be qualified and restrained by conditions of any kind, the right of the owner may indeed subsist and be acknowledged, but it is impaired and rendered insecure, according to the nature and extent of such restrictions. (a)

§ 256. This question again came under consideration in the case of Bronson v. Kinsie.(b) In that case it was held, that a state law passed subsequently to the execution of a mortgage, which declared that the equitable estate of the mortgagor should not be extinguished for twelve months after a sale under a decree in chancery, and prevented any sale unless two thirds of the amount at which the property had been valued by appraisers should be bid therefor, was within this clause of the constitution, and therefore void. The court, in that case, after citing the cases above quoted from 8 Wheaton's Reports, say, we concur entirely in the correctness of the rule above stated. It is difficult, perhaps, to draw a line that would be applicable in all cases between the legitimate alterations of the remedy and provisions which, in the form of remedy, impair the right. But it is manifest that the

(a) 8 Wheat. R. 75.

(b) 1 Howard, 311.

obligation of the contract, and the right of a party under it, may, in effect, be destroyed by denying a remedy altogether, or may be seriously impaired by burthening the proceedings with new conditions and restrictions, so as to make the remedy hardly worth pursuing. And no one, we presume, would say that there is any substantial difference between a retrospective law declaring a particular contract or class of contracts to be abrogated and void, and one which took away all remedy to enforce them, or encumbered it with conditions that rendered it useless or impracticable to pursue it."

§ 257. The decision in the case last cited by us was placed upon the ground, that according to the long settled rules of law and equity, the legal title to the mortgaged premises vested in the complainant on the forfeiture of the condition; and at law he had a right to sue for and recover the land itself. But, in equity, this legal title was regarded as a trust estate, to secure the payment of the money, and, therefore, when the debt was discharged, there was a resulting trust for the mortgagor.(a) It was upon this construction of the contract, that courts of equity lend their aid either to the mortgagor or mortga gee, in order to enforce their respective rights. The court would, upon the application of the mortgagor, direct the reconveyance of the property to him, upon the payment of the money; and, upon the application of the mortgagee, it will order a sale of the property to discharge the debt. But, as courts of equity follow the law, they acknowledge the legal title of the mortgagee, and never deprived him of his right at law until his debt was paid; and he was entitled to the aid of the court to extinguish the equitable title of the mortgagor, in order that he might obtain the benefit of his security. For

(a) Conrad v. The Atlantic Insurance Co., 1 Peters, 441.

this purpose it was his absolute and undoubted right, under an ordinary mortgage deed, if the money was not paid at the appointed day, to go into the court of chancery, and obtain an order for the sale of the whole of the mortgaged property, (if the whole was necessary,) free and discharged from the equitable interest of the mortgagor; this was his right by the law of the contract, and it was the duty of the court to maintain and enforce it without any unreasonable delay. When this contract was made no statute had been passed by the state changing the rules of law or equity in relation to a contract of this kind. None such, at least, had been brought to the notice of the court; and it must, therefore, be governed, and the rights of the parties under it measured, by the rules above stated. They were the laws of Illinois at the time; and, therefore, entered into the contract, and formed a part of it, without any express stipulation to that effect in the deed. Thus, for example, there was no covenant in the instrument giving the mortgagor the right to redeem, by paying the money after the day limited in the deed, and before he was foreclosed by the decree of the court of chancery. But this was his right and remedy; for this right and this remedy by the law of the state then in force, was a part of the law of the contract, without any express agreement; and the rights of the mortgagee required no express stipulation to define or secure them. They were annexed to the contract at the time it was made, and formed a part of it; and any subsequent law impairing the rights thus acquired, impaired the obligations which the contract imposed. That the act of 19th February, 1841, under consideration, acted not merely on the remedy, but, indirectly, on the contract itself, and engrafted upon it new conditions injurious and unjust to the mortgagee. It declared, that although the mortgaged premises should be sold under the decree of the court of chancery, yet that the equitable

estate of the mortgagor should not be extinguished, but should continue for twelve months after the sale; and gave, moreover, a new estate which before had no existence, to judgment creditors, to continue for fifteen months. That if such rights might be added to the original contract by subsequent legislation it would be difficult to say at what point they should stop. That any such modification of a contract by subsequent legislation, against the consent of one of the parties, impaired its obligation, and was prohibited by the constitution.

§ 258. In a subsequent case,(a) it was held, by the same court, that a law of Illinois, providing that a sale should not be made of property levied on under an execution unless it would bring two-thirds of its valuation, according to the opinion of three householders, was within this clause of the constitution, and that such a law impaired the obligation of a contract. The court held, that the obligation of a contract consisted in its binding force on the party who made it. This depended on the laws in existence when made. Those laws were necessarily referred to in all contracts, and formed a part of them, as the measure of the obligation to perform them, by the one party, and the right acquired by the other. That there could be no other standard by which to ascertain the extent of either, than that which the terms of the contract indicated, according to the settled legal meaning. That when it becomes consummated, the law defines the duty and the right, compelled one party to perform the thing contracted for, and gave to the other the right to enforce the performance by the remedies then in force. That if any subsequent law had the effect to diminish the duty, or to impair the right, it necessarily bore on the obligation of the contract, in favor of one

(a) McCracken v. Hayward, 2 Howard, 608.

party to the injury of the other, and hence that any law, which in its operation amounts to a denial or obstruction of the right accruing by a contract, though professing to act on the remedy, only impaired the obligation of the contract, and was within this clause of the constitution. That the obligation of the contract between the parties, in this case, was to perform the promises and obligations contained therein; the right of the plaintiff was to damages for the breach thereof, to bring suit and obtain a judgment, to take out and prosecute an execution against the defendant until the judgment was satisfied, pursuant to the existing laws of Illinois. These laws, giving these rights, were as perfectly binding on the defendant, and as much a part of the contract, as if they had been set forth in its stipulations in the very words of the law relating to judgments and executions. If the defendant had made such an agreement as to authorize a sale of his property, which should be levied on by the sheriff, for such price as should be bid for it at a fair public sale after reasonable notice, it would have conferred a right on the plaintiff which the constitution made inviolable; and it could make no difference whether such right is conferred by the terms or the law of the contract. Any subsequent law which denies, obstructs, or impairs this right, by superadding that there shall be no sale for any sum less than the value of the property levied on, to be ascertained by appraisement, or any other mode of valuation than a public sale, affected the obligation of the contract as much in the one case as in the other, for it could be enforced only by a sale of the defendant's property, and the prevention of such sale was a denial of the right. The same power in a state legislature might be carried to any extent, if it exists at all; it might prohibit a sale for less than the whole appraised value, or for threefourths, or nine-tenths, as well as for two-thirds; for, if the power could be exercised to any extent, its exercise