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appertaining thereto, less costs and charge will be occasioned than heretofore. Having thus afforded the Senate a brief sketch or synopsis of the formal features of the bill, the committee will proceed to assign the reasons which induce them to report in favor of its principles. In the history of our jurisprudence received from the English common law, it will be perceived that real estate has ever been greatly favored. This inclination to protect and preserve it in the hands of owners and occupants, no doubt originated from the social condition of our British ancestors. The feudal tenures not legally abolished until about a century and a half ago, in the reign of the Second Charles, were based on the possession of large landed property and gave entire tone and complexion to the English common law. At this very day, in England, real estate of freehold character can only be extended and never sold in payment of debts. The law in that respect has experienced a change in this country to a very considerable extent among the states of our confederacy, by statutory modifications. The statute laws of most of the states at the present time treat real estate as chattels for the payment of debts. Many of the states, however, still retain a preference for the old common law system, of only extending lands for the payment of debts. Whether real estate shall be extended or sold, that is, whether it shall be placed in the temporary possession of the creditor to satisfy himself out of a reception of its rents and profits, or the title of the debtor shall be wholly transferred to the highest bidder at a public sale, is a matter entirely of remedial regulation and local policy. No law of contract is violated by remedial enactments in respect to the mode of obtaining satisfaction of a general debt or demand. The law of a personal contract to pay any sum of money, is simply what it purports to be, for the payment of the money. If any failure of performance occurs and the creditor is obliged to resort to the laws of the country to enable him to reach the property of his debtor, or in any other way to compel payment by the debtor, he must take those laws, as the general convenience and policy of the country may from time to time frame them. It is different where the contract appertains to some specific property, such as a mortgage, or any other hypothecation of personal or real estate. As the contract is no longer general, and personal and referable for enforcement to the general laws of personal right and security, as they may from time to time vary in the state, but is specifically based upon and relates to the property itself, and necessarily contemplates the laws that at that time recognize it with its incidents, those laws become part of such contract. A law affecting contracts is therefore clearly distinguishable from a law of general remedy. One cannot constitutionally be framed; the other may be varied as suits the pleasure and convenience of the state, both in retrospective and prospective effect. Thus much has been premised, to meet in advance, any supposition, that the passage of this bill will affect any law of contract. It neither can or will. It proposes merely to alter the law relating to executions levied on real estate, which is always a “law of remedy.” This distinction has been recognized and clearly settled by every tribunal in the land. If the passage of this bill will not affect any law of contract, how then can it be urged that the just rights and claims of any creditor will be trampled on or violated 1 The debt or demand is no wise lessened or impaired in respect to its validity and obligation on the debtor. The courts of the state will, as before, give judgment in favor of any just demand of the creditor. . Execution will issue as before, against the goods and chattels, lands and tenements of the debtor. This bill makes neither personal or real estate any tender in payment of debts. That cannot be done; for by the constitution of the United States the gold and silver coin of the Union is the only legal tender. It exerts no compulsion over the creditor. It does not oblige him to levy on the real estate of his debtor or to resort to it for payment. He may choose his own time and mode of remedy as before. Never having been possessed of any implied or express pledge of public faith that the laws of remedy, usually termed collection laws, then in force, should remain permanent and never be altered, the creditor cannot complain of any such alteration effected by the demand of public necessity or policy. Should it therefore now appear that the passage of this bill, or of one containing the same principle, is imperatively demanded by the public good, surely no law affecting contracts is passed, no public faith is violated, no right of the creditor in a personal contract is sacrificed. Whatever of private advantage over his debtor may be lost by the creditor, must be properly yielded to the public good, for “omnia privata cedant bono publico.” Having thus obviated a preliminary objection, which the committee are aware has been often urged by those opposed to the passage of like bills to the one now under consideration, the particular merits of the measure itself are fairly brought up for examination. It appears to the committee that the present pecuniary condition of Michigan requires the adoption of this measure. It needs no argument or statistical exhibition to show the fact that the people of this state are deeply in debt, and that owing to a multiplicity of causes which it is not necessary here to enumerate, they are destitute of ability to discharge this debt in coin or its representative, a sound paper currency. The vast amount of collection suits brought throughout the state, to enforce payment of some millions of dollars, and now rapidly hastening to final
judgment, attests the almost hopeless embarrassment of our pecu. niary affairs and our inability to retreive them by cash or surplus production for a long time to come. Thus destitute of money to meet our heavy engagements at home or abroad, unable from the sparseness of our population and the infancy of the country, to do much more at present, than to furnish our own bread stuffs, it is in vain to expect relief in any other way than by a fair application of our property to the payment of our debts. Our present embarrassments have been very much occasioned by the investment of former pecuniary means in real estate. This for a short time improved so rapidly in value, that it justified a reliance on it, not only to meet our engagements, but also to secure future prosperity. A change in the tide of affairs abroad, both in the eastern and well settled parts of our country, and in Europe, from whence we expected capital and emigration to sustain our hopes, has been as much beyond our control, as it has unexpectedly disappointed our calculations. Still so rapid and astonishing have been the settlement and cultivation of Michigan, that our real estate has not intrinsically depreciated. Our population is just as hardy, intelligent, industrious, persevering and enterprising as before, our soil is as unsurpassed in fertility as ever—our natural advantages have suffered no diminution, and all that we stand in need of is, an opportunity to pay our debts and to start fresh and unincumbered in the race of national improvement. In order to effect this, it is natural that we should still look to our real estate resources. Our means lie there invested. The personal property of a state and people so new and young as we are, must be, as it is, comparatively small. Our great interest and almost our only resource at the present time, is our real estate. It is all we have to pay our debts, and all that we can offer to our creditors. Now this bill favors the just application of that real estate to that purpose. Our creditors almost invariably, are obliged after judgment to resort to it for satisfaction. The only question made by this bill is, shall they have it at its just and fair value, appraised under the solemn sanctions of an oath, or be allowed to wrest it from us at immense and ruinous sacrifices. The question is not stated in any terms of exaggeration, for owing to the almost absolute deficiency of money in the state, it is undoubtedly the fact, that real estate forced to a sale under the sheriff's hammer, will not, on an average, bring one-fifth of its intrinsic value. It is not now true in respect to real estate in Michigan, “that the worth of a thing is what it will bring.” It is manifestly otherwise; and the measure contemplated by this bill, seeks to remedy the unequal and oppressive operation of this rule upon the great interest of this state, its real estate. When this rule of value is just and accurate, or nearly so, in its practical workings, then unquestionably it ought
to be observed, and real estate, under the levy of an execution, should be exposed at public sale to the highest and best bidder, in justice both to creditor and debtor. If this be admitted, a contrary practice should be adopted, when the rule works otherwise. The great law of self preservation here raises its voice in favor of this bill. It is believed by the committee that a public necessity exists for its immediate adoption. No remedy so effectual can be proposed for the relief of the present distress of Michian. 3 Your committee are individually in favor of a state bank on proper principles. But they do not entertain a hope, that it can extricate us from our difficulties. It may furnish us with a sounder currency and relieve us from the heavy taxation of adverse exchanges, but it will not pay our debts. It can but shift our indebtedness and give us some further time. But as has been shewn, time, unless very extended indeed, will not avail us. Our embarrassments are too extensive and we are too deeply and generally involved, to derive benefit from any other means, than the application of our real estate resources at a fair and intrinsic value to the discharge of our responsibilities. Your committee would further observe, that the great cause of public virtue and morality would be enhanced by such a measure as is contemplated by this bill. In view of the ruinous and unjust sacrifices that are occasioned by the present system of selling real estate under execution at sheriff’s sale, experience testifies, that a general and extraordinary temptation exists, to cover real estate from the process of creditors, by fraudulent conveyances. Debtors, who under other circumstances, would consider it dishonest and disreputable to resort to such contrivances, are now tempted to justify it to their consciences by a consideration of the unfair advantages which their creditors would otherwise obtain over them, and of the ruinous consequences to their families, if they permitted such sales. The committee therefore conceive, that it is in a legislative point of view a sound and wise objection to the present continuance of the system of sheriff's sales of real estate under execution, that it tends to the demoralization of the community; for no laws are wholesome, whose operations are so oppressive, unjust and unequal, as in any case to induce and almost to justify fraud, in order to their evasion. Believing then, that a just and fair regard to the public interest, to protect and further which this legislature are here convened, at the present time and under present circumstances, requires the repeal of sheriff's sales of real estate under execution, the committee cannot understand, how a measure such as is proposed by this bill, fraught with benefit to the community at large, and due to the rights of the debtor, can be resisted on the ground that it is unjust to the creditor. They have shewn that it interferes with no law of contract, and that it invades no vested rights of the creditor. They now propose to shew, that it is as just and beneficial to a fair and honest minded creditor, as it is to the public and the debtor.
The committee would be far from recommending, at the expense of a violation of the natural sense of right which exists in the human mind, any partial legislation, however sustained by considerations of policy, power and interest. They would not legislate for the debtor, however popular the measure, at the expense of the legal or equitable rights of the creditor. But what more can any creditor demand of public justice and legislation than, if his debtor cannot pay him the money he owes him, he shall be assisted in obtaining such debtor's property at its just value in satisfaction? He certainly cannot demand that he shall be permitted to speculate on the necessities of his debtor, to compel him to pay unreasonable or usurious interest, to enslave his person or family, or to take from him his property at one-fifth of its real value. Shylock like, he will not be suffered to clamour for the pound of flesh nearest to his debtor's heart, in satisfaction of the penalty of his bond. Such unreasonable, cruel and anti-republican views of the nature of a creditor's claims upon the person and property of his debtor, are now exploded and repudiated. All that a creditor can righteously ask, is granted him by this bill.
If he chooses to have recourse to the real estate of his debtor in satisfaction of his claim, he can take it at its sair value, and by the provisions of this bill, he can take it over absolutely and become its immediate possessor in see simple, clear of all right of redemption. He is thus enabled immediately to use and employ it as his own, to profit by its cultivation, and any increase on its value, or to apply it to the liquidation of claims against himself. Under the system now in use, satisfaction of the demand of the debtor is delayed during the one and two years of redemption allowed to the debtor. f almost every instance, a creditor bringing the real estate of his debtor to a sale by the sheriff under his execution, is now obliged to buy it in and then to await the expiration of the period of redemption, with scarcely any hope of benefit therefrom in the present depressed condition of the country, by any payment of moneys from the debtor in redemption of it, before he can call the property his own or employ it as such. This bill, by obviating the necessity for this delay, confers, in the opinion of your committee, a substantial benefit on the creditor. But the benefit to creditors does not end here. Under the present system of sheriff sales, the creditor who makes the first levy being able to buy in the property of his debtor for want of ready money in the country, at perhaps one fifth of its real value, or even less, is thus permitted, by sweeping away more than his fair proportion of the debtor's property, to obtain a preference over and inflict a serious wrong upon other creditors. In this respect,