remedies at law; because the plaintiff has not by her said bill shown such a case as entitles her to any such relief as is thereby prayed, or any other relief whatsoever against these defendants.

H. M. Heath, for plaintiff.

S. S. Hackett, for defendants.

FOSTER, J. The object of this bill is to enable an attaching creditor of the mortgagor, pending proceedings for foreclosure, to step in, postpone the time for the expiration of the right of redemption, and enable him to fulfill the requirements devolving on the mortgagee, agreeably to chapter 129, Laws of 1887. This statute provides that in all cases where a debtor has mortgaged real estate to secure the performance of a collateral agreement other than the payment of money, and proceedings have been commenced to foreclose the mortgage, and the time of redemption has not expired, a creditor of the mortgagor, having attached the mortgagor's interest, may file a bill in equity, and the court is thereupon authorized to ascertain whether there has been a breach of the conditions of the mortgage; and if such is found to be the fact, to pass any order or decree, and thereby enable the creditor, by fulfilling such requirements as the court may impose, to hold the property or such right as may be acquired by virtue of such attachment, for the satisfaction of his claim; and it is therein provided, that "pending such proceedings the right of redemption shall not expire by any attempted foreclosure of such mortgage."

highest courts in this country have in very many cases laid down the doctrine that the laws which subsist at the time and place of the making of the contract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to or incorporated in its terms, embracing not only those laws which affect its validity, construction and discharge, but also those in relation to its enforcement. Von Hoffman v. City of Quincy, 4 Wall. 550. The obliga tion of a contract includes every thing within its obligatory scope. Among these elements nothing is more important than the means of enforcement. This is the breath of its vital existence." Edwards v. Kearzey, 96 U. S. 600.

At the time when this contract was made the stat ute law of the State provided specific modes by which the mortgagee of real estate might foreclose his mortgage, after breach of the condition on the part of the mortgagor, and it specifically defined the time in which the mortgagor might redeem the estate after commencement of the proceedings under the statute to foreclose the equity. That time, where no express agreement for a shorter period had been inserted in the contract, was a fixed and definite term of three years. At the expiration of that term, if there had been no redemption, the estate would vest in the mort gagee, and he would thereby become invested with an indefeasible title. The rights of the mortgagor and mortgagee were well and clearly defined, and existed by positive law. There was no indefinite equity of redemption, created by courts of equity and enforceable in those courts, as in many of the States (Railroad Co. v. Railroad Co., 59 Me. 25, 30), but the right of equity and the right of foreclosure were creatures of the statute. The rights of the mortgagee were no less valuable to him than those of the mortgagor. If ex isting, and secured to him from the nature of the contract and the laws in force at the time of its execu

the mortgagor.

The mortgage in question was given long prior to this enactment, and was to secure performance of an agreement of the mortgagor to maintain the mortgagees, and the survivor of them, during their natural lives, in a comfortable manner, according to their station in life, and at their decease to pay their funeral charges. Proceedings for the foreclosure of this mortgage had been commenced, and the time for redemption, those rights were as inviolable as were those of tion had nearly expired, when this bill was brought. The defense interposed by demurrer and pressed upon our consideration is that the statute, if retrospective and therefore operative upon this mortgage, is unconstitutional, and consequently void so far as this mortgage is in question; that it is in contravention of that provision of the Constitution of the United States which prohibits a State from passing any law impairing the obligations of contracts. That it was intended to act retrospectively, and apply to mortgages existing at the date of its enactment, as well as to such as should thereafter be made, there can be no question. The contract under consideration falls within the provisions of this act, and the question to be determined is whether the statute in respect to this contract is valid, or whether the Legislature in enacting it transcended its power.

The Constitution of the United States (art. 1, § 10) declares that no State shall pass any law which "impairs the obligation of contract." If the act in question, so far as it relates to contracts existing at the date of its passage, is within the inhibition of the Constitution, it is to that extent inoperative and void. It is insisted that this mortgage, having been given long prior to the act, must be governed by the law then existing, both as to its redemption and foreclosure, and that the law in relation to it then in force became a part and parcel of the contract, and so annexed to it that any extension of the time of foreclosure or redemption would impair the obligation guarantied by the Constitution. It is now well settled that contracts do not derive their obligation solely from the acts and stipulations of the parties, independent of existing law. This obligation bas vitality, and subsists outside of the stipulations expressed by parties in their conAnd in accordance with this principle the

tracts.

Does the legislative act upon which this bid is founded so affect the rights of the mortgagee that the obligation of his contract is impaired, and thus entitle him to protection at the hands of the court? While it is not intended to disturb the proper application of the principle that a State, to a certain extent and within proper bounds, may regulate the remedy, yet if by subsequent enactment it so changes the nature and extent of existing remedies as materially to impair the rights and interests of a party in a contract, this is as much a violation of the compact as if it absolutely destroyed his right and interests. The constitutional prohibition secures from attack, not merely the contract itself, but all the essential incidents which render it valuable, and enable its owners to enforce it. Thus it was said in the case of Bank v. Sharp, 6 How. 301: "One of the tests that a contract has been impaired is that its value has by legislation been diminished. It is not by the Constitution to be impaired at all. This is not a question of degree or manner or cause, but of encroaching in any respect on its obligationdispensing with any part of its force." The doctrine is also there asserted that if, in professing to alter the remedy only, the rights of a contract itself are changed or impaired, it comes within the spirit of the consti tutional prohibition; and when the remedy is entirely taken away, or clogged "by condition of any kind, the right of the owner may indeed subsist and be acknowledged, but it is impaired." "And the test, as before suggested," remark the court, "is not the extent of the violation of the contract, but the fact that in truth its obligation is lessened, in however small a particular, and not merely altering or regulating the remedy alone."

In Louisiana v. New Orleans, 102 U. S. 206, Mr. Jus

1

doctrine laid down by the Supreme Court in Bronson v. Kinzie, McCracken v. Hayward and Curran v. State, but said that the case did not come within either of those decisions; that the remedy of the mortgagee, as it previously existed, was in all its parts substantially continued: and that no new conditions were ingrafted upon it. "A complete and substantial remedy was left them," remark the court in conclusion, "according to the course of justice, as it was administered before its passage, the only difference being that it was less expeditious, but not so' much so as materially to affect or diminish their rights."

Holloway v. Sherman, 12 Iowa, 282, is also cited. This was a case where the statute regulating the foreclosure of mortgages by proceedings in equity gave the defendant uine months additional in which to file an answer. The court admitted that it was unable to fix with precision the dividing line between acts strictly remedial and those impairing the obligation of contracts, and held the law valid, inasmuch as it "simply gave to the defendant an enlarged time for answering, leaving the remedy of the plaintiff in all other respects just as it existed under the previous law."

Nor does the case of Bank v. Eldridge, 28 Conn. 556, to which our attention has also been called, militate against the doctrine enunciated in the decisions of the United States Supreme Court, before cited. It was a case where a second mortgagee had acquired by foreclosure the right of redemption after the time allowed to redeem had expired under a decree of foreclosure. It was simply a question whether sufficient ground was shown for opening a decree of the court of equity, and whether a court of equity possesses the power of reopening a decree of foreclosure and extending the time of redemption. The court there say that this power is inherent in the court that made the decree is too well settled to need citation of authorities.

It will be noticed that in those decisions the foreclosure was under proceedings in equity where the Court of Chancery was authorized to decree foreclosure-a proceeding which has never existed in this State. Railroad Co. v. Railroad Co., 59 Me. 31. As we have remarked, foreclosure in one of the modes provided by law is fixed by positive statute enactments, and does not depend upon any decree of the chancellor. It is not subject to that degree of flexibility both as to time and process, which exists in those jurisdictions when foreclosure proceedings are relegated to courts of equity. The remedies there are more elastic than under a system where the time of redemption is known and understood to be for a fixed and definite term. So long as we maintain that the remedy furnished by the laws at the time the contract is eutered into constitutes a part of the obligation (Walker v. Whitehead, 16 Wall. 314) so long must we see that it is not materially impaired by any disguise

of remedial legislation. The doctrine of remedy must not affect the doctrine of rights. The latter is superior to the former, and guarantied not only by the Federal but every State Constitution. While we admit the difficulty in some cases, of determining whether the change in the remedy has thus materially im paired the rights and interest of the creditor, we do not think any such difficulty exists in this case. The act in question abrogates a right which the defendant had as mortgagee, at the time the mortgage was given, of a fixed and definite period for the foreclosure of the mortgagor's equity. By this act, that which was before certain is rendered uncertain. It expressly provides that pending proceedings between the mortgagor and any of his creditors who may have a claim against him, and who may see fit to enforce it by attachment and subsequent bill in equity. the right of redemption shall not expire by any attempted foreclose of such mortgage. Litigation upon

such a claim may be protracted for mouths, or even years. If the claim is a valid one, then an equitable interest is conferred upon one other than the mortga gor, with rights against the mortgagee of paying such damages as a court of equity may assess, and fulfilling requirements which, as in this case, by the terms of the mortgage contract devolved upon the mortgagor to fulfill personally. Bryant v. Erskine, 55 Me. 156; Eastman v. Batchelder, 36 N. H. 141, 149; Clinton v. Fly, 10 Me. 296.

The right of redemption and the time for foreclos ure may thus be so prolonged as materially to dimin ish the security of the mortgagee, notwithstanding he may be allowed possession of the premises. The rights conferred upon the judgment-creditor are directly in conflict with the rights of the mortgagee acquired when the mortgage was made. "If such rights may be added to the original contract by subsequent legislation," said the court in Bronson v. Kinzie, supra, “It would be difficult to say at what point they must stop."

The conclusion to which we have arrived in reference to this statute, as applied to pre-existing contracts, renders any further consideration of the case unnecessary.

Demurrer sustained.

Peters, C. J., and Danforth, Libby, Emery and Haskell, JJ., concurred.

*

Laws of New York, 1885, chapter 483, section 1, imposes a tax on all property "which shall pass by will * * * from any person who may die seized or possessed of the same while a resident of the State, or which property shall be within this State, or any part of such property, *...* transferred by deed, * * or gift, * intended to take effect" after the grantor's death, to any person other than certain enumerated relatives. Section 11 provides that whenever any foreign executor shall transfer any stocks in this State, standing in the name of his tes tator, which shall be liable to such tax, the corporation shall become liable for the tax by permitting such transfer to be made without the tax having been paid. Section 15 gives jurisdiction to hear questions relative to such tax to the surrogate of the county in which the real estate of the decedent is situate, if the latter is not a resident of the State, or to the surrogate of the county in which decedent resided at the time of his death. Held, that the act imposes a tax only on the property of resident decedents.

APPEAL from Supreme Court, General Term, Sec

ond Department. Special proceeding on behalf of the State, prosecuted by the district attorney before the surrogate of Kiugs county, to compel the payment of the collateral inheritance and legacy tax on certain devises and bequests made by the will of Hannah Enston, deceased. The surrogate ordered payment to be made, and on appeal to the Supreme Court that order was affirmed, and the executors, Joel W. Sherwood et al., again appeal.

Josiah T. Mareau, for appellants.
James W. Ridgway, for respondent.

ANDREWS, J. Hannah Enston died at Spartensburgh, S. C., on the 26th day of October, 1886. At the time of her death she was a resident of Philadelphia, in the State of Pennsylvania, and she had never been a resident of or domiciled in this State. She left a last will and testament, which was admitted to probate in the Surrogate's Court of Kings county. She had an

at his death. There would be no occasion for him to do it, as the previous portion of the section had imposed no succession tax upon the property which he as a non-resident should leave; and yet the broad language used may be so construed as to include transfers inter vivos, made by both residents and non-residents, and for the purposes of this case it does not matter which of those two constructions be given to that portion of the section. We are therefore of opinion, in view of the inapt phraseology used, that there was no intention by that section to impose a succession tax upon property passing by will or intestacy from a nonresident of the State to his collateral relatives.

The people claim some support for their construction of section 1 from section 11, which reads as follows: "Whenever any foreign executor or administrator shall assign or transfer any stocks or loans in this State, standing in the name of a decedent, or in trust for a decedent, which shall be liable to the said tax, such tax shall be paid to the treasurer or comptroller of the proper county on the transfer thereof; otherwise the corporation permitting such transfer shall become liable to pay such tax." It must be observed that that section imposes no tax. Section 1 does that, and it is upon that section alone that reliance can be placed for the exaction of this tax. But it is proper to look at section 11, so far as it may throw light upon section 1. There may be cases where all the executors or administrators are nou-residents of the State, and therefore not within the jurisdiction of our courts; and such executors or administrators may assign or transfer stocks or bonds in this State, and provision is here made for the collection of the tax in such cases. Section 15 is also referred to, and that is as follows: "The Surrogate's Court in the county in which the real property is situate of a decedent who was not a resident of the State, or in the county of which the decedent was a resident at the time of his death, shall have jurisdiction to hear and determine all questions in relation to the tax arising under the provisions of this act." That speaks of the real property of a non-resident decedent situate within this State; hence the claim is made that the statute evidently contemplates that a tax may be imposed upon the real estate of a non-resident decedent. This section is very bungling and uncertain. The draughtsman evidently had in mind that there might be some case in which a non-resident decedent might leave real estate in this State which would be subject to taxation under the act. This section certainly can have no operation, as it imposes no tax, unless section 1 has imposed a tax in some case upon the real estate within this State of a non-resident decedent. An inference cannot be drawn from this section that section 1 authorizes the imposition of any tax upon the personal property of a non-resident decedent, because the section is expressly confined to the real property of such a decedent, and unless such a decedent leaves real property within this State no jurisdiction is conferred upon a surrogate to determine the questions in relation to the tax arising under the provisions of the act. But there might be a case if section 1 be construed to impose a tax upon all property transferred within this State inter vivos, where the real estate of a non-resident situate within this State would be liable to the tax, and in this way some force and effect could be given to section 15.

There is certainly nothing in this act imposing a succession tax upon the stocks, bonds and other choses in action left within this State by a non-resident decedent. It is a general rule of law that such property attends the owner, and has its situs at his domicile. It is true that that is a fiction of the law, but it is a fiction which must prevail, unless there is something in the policy of the statute or its language which shows a

different legislative intent. Hoyt v. Commissioners, 23 N. Y. 224; People v. Smith, 88 id. 576. The corpor ate stocks of the decedent were not, under the general laws of this State, taxable here, although the share certificates may have been held here by her agents. The certificates are in no general sense property. They simply represent interests in the corporations, and the situs of the property owned by a shareholder in a corporation is either where the corporation exists or at the domicile of the shareholder. It can in no proper sense be said to be where the certificates happen to be in the hands of an agent in a State where the corporation has no existence and the owner no domicile. So too the bonds of foreign corporations in the hands of the agents of the decedent here were not, in a legal sense, property within this State, and they were not under the general laws or the policy of the State taxthe contrary, they were by the general policy of the able there. Nor were the mortgages taxable here. On 389, § 5, as amended by chapter 176, Laws 1851, §2; id., State exempted from taxation here. 1 Rev. Stat., p. p. 419, § 3; Williams v. Board, 78 N. Y. 561.

There is nothing in the act of 1885 from which it can be inferred that the Legislature meant so far to depart impose here a succession tax upon property thus situfrom its general system and policy of taxation as tó ated. It was dealing with taxation upon the property cient to impose taxation upon such property, but not of persons domiciled here, and used language suffiupon property of non-residents which had no situs in this State.

It cannot be presumed that it was the intention of the Legislature to impose taxation upon all the property of any decedent found within this State. Suppose a foreigner should come here with negotiable se curities in his possession for the purpose of buying property here, and soon after should die here; or suppose a merchant should come here from some other session, and should die here shortly after reaching this State with drafts or negotiable securities in his posState. Can it be supposed in either of such cases that it was the legislative intent that, before the property jurisdiction of his domicile, it should be subjected to of the decedent could be taken out of this State to the again, if this act is to be so construed as to reach pera tax to enhance the revenues of the State? Then, sonal estate of non-resident decedents, how is it to be administered? There are no means of ascertaining here how much of the estate will pass to collateral relatives under a will or by intestacy. That can only be known after the entire expenses of administration, and the debts and liabilities of the deceased, have been ascertained and deducted at the place of his domicile. Suppose a non-resident dies leaving a million of dollars in this State, and is largely indebted at after deducting debts and expenses of administration the place of his domicile, what his net estate will be can only be ascertained at his domicile, where his estate must be finally adminisrered and adjusted; and there can be no way of adjusting the estate here, as there is no machinery in the law here appropriate to such a purpose, and thus it would be impracticable to administer this statute.

Still further, if a succession tax is demanded and paid here upon the property of a non-resident decedent, that does not answer a claim for a further tax at the place of the decedent's domicile; and thus his estate might, and many times would be, subjected to a double succession tax. There is in the State of Pennsylvania a law for the taxation of collateral inheritances like that which exists here, and if this estate be subjected to this tax in this State it may again be subjected to a like tax in that State. All these considerations should lead us to hesitate to put upon section 1 such a construction as would bring within its purview the property of a non-resident de