
    Conkey and another against Hart.
    Where there was a provision in a chattel mortgage, that the mortgagor should remain in possession until default in payment, unless he or some other person should attempt to sell, assign, remove or otherwise dispose of tlia property; Held, that the seizure of the property before default on a distress warrant for rent due from the mortgagor entitled the mortgagee to the immediate possession, and that after demand and refusal replevin would lie against the bailiff for the wrongful detention.
    
      Although a contract contains a provision that the party may resort to a specified legal remedy for its enforcement, a general act of the state legislature abolishing such remedy does not impair the obligation of the contract within the meaning of the prohibition contained in the federal constitution.
    Accordingly, where a lease made in 1815 for four years contained a provision that on default by the lessee in paying the rent the lessor miglit distrain, sue for the same, or resort to any other legal remedy, and in case he should distrain, that all property on the premises, not excepting articles exempt by law from distress, might be taken to satisfy the rent; Held, that the act abolishing distress for rent (Laws of 1816, 369) was valid as to this lease, notwithstanding that it took away the right to distrain for the rent.
    Replevin commenced in April, 1848, to recover for the alleged wrongful detention of horses and other personal property. On the trial before Justice Pratt at the Monroe county circuit the plaintiff read in evidence a chattel mortgage dated the 17th of March, 1848, executed by one Warded to the plaintiffs to secure the payment of $200 and interest, the one-half to be paid in six months and the balance in a year from its date. The mortgage was duly filed on the 19th of March, 1848. It conveyed the property in question to the plaintiffs, and contained a condition tnat it should be void upon payment of the $200 and interest as above specified. It also contained the following provision • “ And until default be made in the payment of the aforesaid sum of money at the time fixed for the payment thereof, Warded, his executors, administrators and assigns to remain and continue in the quiet and peaceable possession of the said chattels and the full and free enjoyment of the same, unless Warded or some other person or persons shall attempt to sell, assign, secrete, remove or otherwise dispose of the said chattels in any way whatever, then or in such case it shall and may be lawful for the parties of the second part (the plaintiffs), their heirs, &c., to take immediate possession of said chattels and keep the same' until default be made as aforesaid, and then to sell and dispose thereof.” The plaintiffs proved that' the consideration of the mortgage was a debt due them from Warded; that on the 3d of April, 1848, the property was seized by the defendant as bailiff of Will am Simpson by virtue of a distress warrant to collect . rent due from Wardell to Simpson; that on the 5th of said month of April the plaintiffs demanded possession of the property, which the defendant' refused to surrender; and that its value was $191. It appeared that the property was taken from the defendant and delivered to the plaintiffs' by virtue of the writ of replevin.
    The counsel for the defendant read in evidence a lease dated the 14th of March, 1845, executed by Simpson and Wardell by which the former demised to the latter a farm, situate in Monroe county, for the term of four years from the 20th of March, 1845, at the rent of $450, to be paid by Wardell as follows : $75 during the first year, $100 on the- 1st day of October in each of the years 1840, 1847 and 1849, and $25 on the 1st days of March, 1847 and 1848. The lease contained the following 'provision: “ And provided said party of the second part (Wardell) shall fail to pay said rent or any part thereof, when it becomes due, it is agreed that the said party of the first part may distrain or sue for the same, and reenter said premises, or resort to any other legal remedy; and in case of distress for nonpayment under this lease, the said party of the second part hereby consents and agrees that any property upon said premises, not excepting such articles as are by law exempt from distress, may be taken to satisfy the rent in arrear.”
    The defendant proved that Wardell took possession of the farm on the 20th of March, 1845, and occupied it by virtue of the lease until after the seizure of the property. That on the 3d of April, 1848, there was due to Simpson on the lease $250 of the rent, and on that day he issued and delivered to the defendant, who was then sheriff of Monroe county,, a warrant commanding him to levy and collect the same of the property of Wardell; and that the defendant by virtue thereof on the same day seized the property in question which he found in the possession of Wardell upon the demised premises. There was no question but that the warrant of distress was regular in form.. It appeared that Wardell had no other team than the horses seized on the warrant and which were replevied by the plaintiffs,
    At the close of the evidence the counsel for the defendant insisted that the plaintiffs were not entitled to recover because: 1. They did not show a right to the possession of the property when the suit was commenced; and 2. The act of May 13, 1846, abolishing distress for rent, did not deprive Simpson of his right to distrain under his lease which was executed before the passage of that act. The court decided that the statute above mentioned did not affect the right of Simpson to distrain for the rent due by virtue of this lease, and ordered judgment in favor of the defendant.
    ■ The plaintiffs excepted; and the judgment having been affirmed at the general term in the seventh district, they appealed to this court.
    
      N. Hill, Jr., for the appellants.
    
      H. R. Selden for the respondent.
    I. The defendant, Hart, rightfully seized the goods in question upon the distress warrant placed in his hands for execution. 1. The act of May 13th, 1846, abolishing distress for rent, was designed to operate upon leases thereafter executed, and not upon antecedent leases. (Dash v. Van Kleek, 7 John., 477; Butler v. Palmer, 1 Hill, 325; Johnson v. Bunnell, 2 Hill, 238.) The fact that the second section of that act repeals § 12 to 17 (1 R. S., 746, 7), and leaves § 18 unrepealed, favors this construction. 2. If it be construed as affecting prior leases, especially upon those containing an express covenant giving the right of distress, it impairs (destroys) the obligation of such covenant, and therefore conflicts with the constitution of the United States. (Bronson v. Kinzie, 1 How., 311; McCracken v. 
      Hayward, 2 id., 608.) 3. If the right of distress remained at all, it remained as it existed according to law prior to the act of 1846. The reasons, which produced the rule that all goods found on the demised premises might be distrained for rent, apply with as much force, and the rule is as much in'force now, wherever the right of distress exists, as before the act of May 13th, 1846, was passed. Those reasons are supposed to be,—1st, That “the goods have enjoyed the shelter and protection of the premises.” (Taylor's Landlord and Tenant, p. 227.) And 2d, That “ otherwise a door would be open to infinite frauds upon the landlord.” (3 Bl. Com., 8; 1 Lord Ray., 168; 2 Saund., 290, notes 6 and 7; 1 Rawle, 435; Com. Dig., Distress, (B. 1.); Bradby on Distress, ch. 11, 2d ed., 147.) If the right of distress for rent exists to any "exent, the provisions of the statute applicable to such distress, remain in force to the same extent. (1 R. S., 747, § 18; 2d ed., 502, 14, 15 16.)
    II. The plaintiffs failed to show a right to the possession of the goods when the action was brought. 1. By the terms of the mortgage, the mortgagor was entitled to possession, for more than five months after this suit was commenced. This interest of the mortgagor was liable to seizure, and effectually deprives the plaintiffs of their right of action. Under the levy, we obtained’ not only the right of possession until default, but the light of redemption; that is, the right to pay off the mortgage, and thus obtain an absolute title. (Randall v. Cook, 17 Wend., 57, 58; Charter v. Stevens, 3 Denio, 35, and cases there cited; Dane v. Mallory, 16 Barb., 49; Hinman v. Judson, 13 id., 629.) 2. There was nothing in a levy on these goods by the sheriff, which authorized the mortgagees to take them into their possession. The clause in the mortgage giving them such right, is aimed only at acts of a fraudulent nature, something which should hazard the mortgagee’s security, and cannot reasonably be applied to a levy on execution, or under a distress warrant. (Russell v. Butterfield, 21 Wend., 302.) 3. If it had appeared that the sheriff threatened to sell the goods absolutely, instead of the mere right of possession subject to the mortgage, there might be some propriety in the assertion by the mortgagees, of their conditional right to take possession. The case, however, shows nothing of the kind. (Wheeler v. McFarland, 10 Wend., 322.)
   A. S. Johnson, J.

The chattels which the plaintiffs have replevied were mortgaged to them by Wardell, the owner, on the 17th March, 1848, to secure the payment of $200 with interest, one-half in six months from the date and the residue in one year. The mortgage contained a provision that until default in payment Wardell was to remain and continue in the quiet and peaceable possession of the property mortgaged and the full and free enjoyment of the same, unless he or some other person or persons should attempt to sell, assign, secrete, remove or otherwise dispose of the said goods and chattels in any way whatever, in which case it should be lawful for the mortgagees to take immediate possession of the said goods and chattels and keep the same until default should be made and then to sell and dispose of the same. The mortgage passed the property in the chattels to the mortgagees, subject to be defeated by payment of the moneys secured; but the mortgagor retained the right of possession until either a default in payment should occur, or a breach of. the condition before stated as to the removal of the property. Upon the happening of either of the contemplated events the mortgagees-’ right to the possession would become complete. (Mattison v. Baucus, 1 Coms., 295, and cases there cited.) By the terms of the condition in the mortgage an attempt to do either of the acts specified would create a breach upon which the right of the mortgagees to the possession would arise The seizure by the defendant under a distress warrant for rent in arrear, assuming for the present that the warrant was issued without lawful authority or not under a right superior to that conferred by the mortgage, would be a breach of the condition. Such a seizure could only be made with a view to the transfer at least of the possession of the mortgaged chattels to some person other "han the mortgagor, while the object of the condition was .reserve the property in the hands of the mortgagor, so that on default in payment the mortgagees might find the property in the hands of the party with whom they had contracted. It is therefore necessary to inquire what right the defendant po-ssessed under the distress warrant by virtue of which the seizure was made. Wardell, the mortgagor, leased from one Simpson a farm of land for a term of years by a lease dated and made in 1845, which provided for the payment of certain rent, and contained a further agreement that if the lessee failed to pay the rent or any part of it when it became due the lessor might distrain or sue for the same and reenter said premises or resort to any other legal remedy and in case of distress for non-payment the lessee consented and agreed that any property upon the premises, not excepting articles by law exempt from distress, might be taken to satisfy the rent in arrear. The warrant was executed by the defendant on the 3d of April, 1848, by the seizure of the chattels in question. Between the execution of the lease and the issuing of the warrant the legislature had passed an act entitled, “ An act to abolish distress for rent, and for other purposes’’ (Laws of 1846, ch. 274), the first section of which is in these words : “ Distress for rent is hereby abolished.” The supreme court held that this act in its application to a lease' like the present, existing at the time of its passage, was in violation of that clause in the constitution of the United States which forbids any state to pass a law impairing the obligation of contracts. The correctness of this determination is therefore to be considered.

It is not to be overlooked that the stipulations of the parties, with which the statute is supposed to interfere, relate to the remedy for a breach of the principal provision of the contract which provides for the payment of the rent. That obligation, the statute does not interfere with, but it may be enforced by all the means which the state furnishes for the enforcement of other contracts. In this particular the question presented in this case differs from that in any of the cases which have been considered in the supreme court of the United States. In those cases, the particular remedies for a breach of the main contract had not been agreed upon, and the questions were, either whether the obligation of the contracts was directly impaired by state legislation, or whether in legislation in respect to remedies they had not been so weakened in stringency as that the supreme court felt bound to say that, though in form altering the remedy, they in fact impaired the obligation itself. All the cases recognize the obvious distinction between impairing the obligation of the contract and altering the remedy for a breach of it, and acknowledge the power of the state over the latter, while maintaining its want of power to impair the obligation of the contract. (Bronson v. Kinzie, 1 How., 315.)

If, therefore, the lease contained no stipulation between the parties as t) the remedy to be had upon a failure to pay rent, it cannot be doubted that the act in question would be effectual to take away the right to resort to the legal, process of distress. (Guild v. Rogers, 8 Barb., 502; Morse v. Goold, 1 Kern., 281.) It places the. contract for the payment of rent upon the footing of all other contracts, does not attempt to touch the obligation to pay, either as to the amount payable or the time when payment may be demanded, and does not afford to the debtor any special exemption of property from being taken on execution to satisfy the debt.

Is the case altered by the stipulations of this contract? In the view taken by the supreme court, the contract in substance contains a stipulation between these parties that this state shall continue in force the legal process of distraining for rent. If this is a subject on which parties can contract, and if their contracts when made become by virtue of the constitution of the United States superior to' the power of the legislature, then it follows, that whatever at any time exists as part of the machinery for the administration of justice may be perpetuated if parties choose so to agree. That this can scarcely have been within the contemplation of the makers of the constitution, and that if it prevail as law it will give rise to grave inconveniences, is quite obvious. Every such stipulation is in its own nature conditional upon the lawful continuance of the process. The state is no party to their contract. It-is bound to afford adequate process for the enforcement of rights; but it has not tied its own hands as to the modes by which it will administer justice. Those from necessity belong to the supreme power to prescribe, and their continuance is not the subject of contract between private parties. In truth it is not at all probable that the parties made their agreement with reference to the possible abolition of distress for rent. The first clause of this special provision is-that the lessor may distrain, sue, reenter or resort to any other legal remedy, and the second is that in case of distress, the lessee waives the exemption of certain property from the process, which was by law exempted. This waiver of exemption was undoubtedly the substantial thing which the parties had in view ; but -yet, perhaps, their language cannot be confined to this object, and it may therefore be proper to consider the contract as if it had been their clear purpose to preserve this legal remedy even if the legislature should think fit to abolish it. In that aspect of it, the contract was a subject over which they had no control. (Handy v. Chatfield, 23 Wend., 35.)

The question presented does not greatly differ in principle from Mason v. Haile (12 Wheat., 370), which was an action on a bond for the limits executed by one imprisoned for debt and conditioned that he should remain a prisoner until lawfully discharged. He was discharged under a subsequent . act of the legislature, providing for his particular case. The supreme court of the United States sustained the discharge apparently upon two grounds. The one that the states clearly possessed the right to abolish imprisonment for debt altogether, as well present as future imprisonment, because such laws acted merely upon the remedy. The other was that lawful discharge in the contract, meant not only such modes of discharge as at the time of making the contract were lawful, but also such modes as at the time of the discharge might be prescribed by law, and yet it is quite plain that the court would have found great difficulty in giving that meaning to the words of the contract, if the power of the state to abolish imprisonment for debt had not been beyond the control of the parties.

Other branches of this same act, forming part of the same scheme of public policy which the legislature had in view in the section now in question, were considered by the supreme court, in Stocking v. Hunt (3 Denio, 274), and by this court, in Van Rensselaer v. Snyder (3 Kernan, 299). In the first case no intimation is to be found of a doubt of the power of the legislature over the subject, and in the latter, the opinion of the court, delivered by Gardiner, C. J., proceeds upon the basis that the abolition of distress for rent was effected in all cases by the act in question.

The judgment should be reversed and a new trial ordered.

Denio, C. J., Comstock, Mitchell, Hubbard and Wright, Js., concurred.

Selden and T. A. Johnson, Js., were of opinion that the right to distrain under the lease in question could not be taken away bj- the state legislature.

Judgment reversed.  