84 Pa. 433 | Pa. | 1877
delivered the opinion of the court,
On the 11th of April 1873 the defendant executed, under seal, the note on which this judgment was entered. He therein agreed to pay three thousand dollars, one year after date. He authorized any attorney of any court of record to appear for him, and to confess judgment against him for the said sum “with costs of suit, release of errors, waiver of stay of execution, the right of inquisition on real estate, and all exemption laws.” On the same day judgment was duly entered on the note.
Thus the written contract shows the defendant expressly waived all stay of execution, after the maturity of the note. The waiver was part of an entire contract. It was founded on a sufficient consideration. No policy of law forbade it. He had an undoubted right to so agree. After the expiration of the year, he could not interpose any further stay. The right of the holder to execution, became complete. It is not alleged that under any law, then existing, the order of 21st October 1876, staying execution, could be sustained. Is such a stay authorized by the Act of 17th February 1876 ? Section first of this act gives the Court of Common Pleas power to authorize an assignee, for the benefit of creditors, to make public sale of the real estate, of the assignor, “at such place and. upon.such terms as the said court shall direct.” It further declares that after confirmation, said sale shall discharge all liens against the real estate so sold, excepting mortgages prior to other liens, ground-rents, and purchase-money due to the Commonwealth. Section two declares that when such an order of sale is made, the “ said court may order a stay of execution on all liens that may be divested by such sale by the assignee until said order shall be extended or revoked.” It also authorizes the court to extend an order of sale which it had granted, or to award an alias or pluries order therefor.
It is not entirely clear that the legislature intended this act to apply to cases in which the parties had agreed there should be no stay. It makes no specific reference to such cases. In Dewart v. Purdy, 5 Casey 113, it was said nothing but the most indubitable phraseology will induce this court to hold that the legislature intended an enactment to have any other than a prospective operation. With fully equal reason we should hold that the legislature did not intend to change- the terms of an existing contract, unless the act expressed such intention in clear language. Applying that rule to the Act of 1876, it would not affect the note in question. If, however, we concede that the general terms of the act are sufficiently broad to include this judgment, then other questions arise. Is the act within the limits of constitutional power? Can the legislature thus impair a contract ? When the parties have not specifically contracted in regard to the remedy for the collection
Usually parties do not contract as to the manner of ascertaining the damages, nor as to their measure, in case of a failure to fulfil the substantial obligations of an agreement. They leave these questions to be settled in the manner provided by general law. Yet when they do contract in regard to them, the contracts become of binding force, and the courts must so recognise them. Thus in a contract for the construction of a railroad, full effect is given to a clause providing that the decision of the chief engineer shall be final and conclusive in all matters of dispute arising between the parties to the agreement as to the proper execution of the work. In like manner, an agreement liquidating the amount of damages in case of a non-performance of the contract, will be enforced.
Whenever the parties have made the legal remedy the subject of their contract, that portion of their contract is as far removed from subsequent legislative action as the main obligation of their contract. Where legislative power is unable to impair the one, it cannot the other: Billmeyer v. Evans et al., 4 Wright 324; Breitenbach v. Bush, 8 Id. 313; Lewis v. Lewis et al., 11 Id. 127.
Conceding that the legislature may lawfully change the mode of selling the defendant’s real estate; that it may authorize it to be sold by virtue of-an order to the assignee, instead of by writ to the sheriff; that it may authorize a stay of proceedings on the latter, while the power of sale is being exercised on the former, with-, out infringing on that clause in the constitution which denies it the power of impairing a contract, it by no means follows that it can postpone the collection.of the debt for an unreasonable time.
This brings us to a consideration of the terms and effect of. the order made by the court, It declares that the purchaser shall be required to pay twenty per cent, of the purchase-money at the time of sale, “ and the balance in three equal payments, at six, twelve and eighteen months with interest.” If, however, the bid should exceed twenty thousand dollars, the excess above the down payment shall be in four equal payments, at six, twelve, eighteen and twenty-four months with interest.
The record before us fails to show the relative position of the plaintiff’s judgment in the order of liens. In view, however, of
