Buchoz v. Grandjean and Grandjean.

right. But to hold it conclusive in this proceeding, would be nothing less than saying, that the will of the electors, plainly expressed in the forms prescribed by law, may be utterly defeated by the negligence, mistake, or fraud of those who are appointed to register the results of an election."

The demurrer must be overruled, with leave for the attorney general to reply.

Demurrer overruled.

BUCHOZ V. GRANDJEAN AND GRANDJEAN.

A partner cannot submit partnership matters to arbitration without a special authority for that purpose from his copartners.

ERROR to Wayne Circuit Court. Henry and Gustave Grandjean, who were partners, sued Buchoz in the court below, in assumpsit on an award. On the trial of the cause, the plaintiffs below, after having introduced evidence of the submission to arbitration by Buchoz and Henry Grandjean, on behalf of himself and Gustave, who was not present when the submission was entered into, offered the award of the arbitrators in evidence, which was objected to by defendant's counsel, for the reason, that no authority was shown by Henry from Gustave to enter into the submission for him, Gustave. The objection was overruled, and the award received in evidence.

Bishop and Hawkins, for plaintiff in error.

Goodwin, for defendants in error.

By the court, MUNDY, J. The reason for the ruling of the court, as appears from the bill of exceptions, was, "that if the defendant chose to submit for the consideration of the arbitrators, matters existing and in dispute between him and the two Grandjeans, he could do so: and if he did so, and the account was made out in the name of the two Grandjeans and himself, and submitted without objection on his part,

Buchoz v. Grandjean and Grandjean.

he could not now object that Henry Grandjean was not authorized to act in behalf of himself and brother, as partners." Such conduct on the part of Buchoz might amount to an admission that Henry and Gustave were partners. It showed that he had treated them as such, and then considered them, as such: but it would not amount to an admission that Henry was authorized by his copartner to submit for him. Buchoz might have supposed, and he undoubtedly acted upon the supposition, that the submission was mutually binding upon the parties interested in the matters submitted; and, so far as his rights and his liabilities were concerned, he was only interested to know, that the submission was such that under it a valid award might be made; that that which he sought, a final settlement of the matters in difference between himself and the Grandjeans, might be amicably effected.

His conduct, it appears to me, is free from all suspicion: the dishonesty, if any there was, was upon the other side; and it would be a strange perversion of justice to determine that an award made under such circumstances, while it could not be enforced against Gustave Grandjean, should be binding upon Buchoz.

In the case of Eastman v. Burleigh and Burleigh, 2 N. H. Rep. 484, the parties entered into a rule before a magistrate for a reference of the matters in controversey between them, but the agreement to refer was signed by "Daniel Burleigh, for himself and William Burleigh," and the rule recited that "Daniel Burleigh, for himself and brother, William Burleigh," on the one part, applied for it. It nowhere appearing in the proceedings that Daniel had any authority from William to enter into the rule, or that William had any thing to do with the proceedings, the supreme court reversed the judgment upon the ground, that the award being, as to William, a mere nullity, it was not final as between the parties to it, and was, therefore, void. Woodbury, J., in delivering the opinion of the court, said: "It is now too late for William, after the award is in his favor, to ratify the doings of his brother;" and this was based upon the ground that a suit would lie in his favor the claims submitted: and thus the award not only fail to be final as to him, but lose all the mutuality intended by the plaintiff and the referees. Kyd, in his Treatise on Awards, p. 148, speaking of the rule, that the award must be mutual, says, that the principal requisite to form that mutuality, is nothing more than that the thing awarded to be done,

upon

Cargill v. Power.

should be a final discharge of all future claim by the party in whose favor the award is made, against the other for the cause submitted.

That one partner cannot submit to arbitration partnership matters, without the special authority of his copartners, is laid down in 3 Bing. ham 101, and 1 Peters 222, and is, we think, the proper rule. The judgment of the circuit court must be reversed.

Judgment reversed.

CARGILL V. POWER.

A mortgage containing a power of sale was given in January, 1847, and the mortgaged premises were advertised and sold under the power in July, 1848. Between the giving of the mortgage and the sale, the law regulating the time of redemption by the mortgagor was changed from two years to one year. It was held, that the law in existence at the time the mortgage was executed and delivered, was a part of the contract: that the mortgagor had two years from the sale to redeem in, and that the law in force at the time the sale took place, restricting the redemption to one year, was unconstitutional, so far as it respected mortgages in existence at the time the law took effect.

CASE reserved from Oakland Circuit Court.

Van Dyke and Emmons, for plaintiff.

Joy, for defendant.

By the court, MUNDY, J. This was in its inception an action to recover the possession of land under a summary proceeding in the county court of Oakland, authorized by section 3 of chapter 123 of the Revised Statutes, which, as one of the causes for such proceedings, is in this language: "When any person shall continue in possession of any premises sold by virtue of any mortgage or execution, after the expiration of the time limited by law for the redemption of such premises."

By the proceedings in the case, it appears that the plaintiff, the assignee of a mortgage executed in January, 1847, by the defendant to Myron Botsford and P. Dean Warner, purchased the premises at an VOL. I

47

Cargill v. Power.

auction sale, under the power contained in the mortgage, in July, 1848 and received a deed for the same from the sheriff of Oakland county, with an endorsement thereon that the deed would become operative in one year from that time.

The proceedings, it is stipulated, were regular, and the only question reserved, is, has the mortgagor, under the law, one or two years for redemption? It is insisted, that, as the mortgage was executed after the passage of the Revised Statutes, but before they took effect, that the intention of the parties was, that the proceedings under the power to sell should be regulated, and their rights governed, by the provisions of the Revised Statutes.

No statute has, ex proprio vigore, any force until it becomes the law of the land. All persons are bound to know, and are supposed to know, what the law is: and as it is that which is to govern the actions and conduct of men, their contracts, it is to be presumed, are made in reference to it, unless the contrary is expressly shown.

It does not appear that the parties knew what were the provisions of the Revised Statutes: what alterations they had made in that which was the subject matter of their contract. They knew that there was a law in force regulating the time and mode of sale under the usual power contained in a mortgage-regulating, also, the execution of the deed of conveyance, and its operation and effect. With what propriety, then, can we say, that the legal presumption is, that their contract, in its very terms made in reference to the law, was not made in reference to the law in force, but in reference to one which might never take effect? This cannot be the legal presumption; and when we consider that at the time when the contract was made, the legislature was in session, and that in these days of multitudinous legislation there is no great stability in the law itself, I think it cannot be said that such is a rational presumption.

The Revised Statutes having given to the purchaser a right of action against the mortgagor continuing in possession of the mortgaged premises after the expiration of the time limited by law for their redemption, and the same statutes having reduced the time of redemption given by the law of 1844 from two years to one, it is necessary to consider the constitutionality of these provisions of the revised statutes, as they bear upon the inhibition in the constitution of the United States

Cargill v. Power.

against the enactment by a state legislature of any law impairing the obligation of contracts.

The counsel for the plaintiff insisted, in his argument, that the mortgage is but a remedy provided by the parties for the enforcement of their contract, and, like all other remedies, is subject to the reasonable control of the legislature. There is no doubt, that whatever belongs to the remedy may be altered according to the will of the state: provided, the alteration does not impair the obligation of the contract. This is the settled doctrine of the supreme court of the United States. 8 Wheaton 1; 1 Howard 316. But the remedy thus spoken of, is that which the law gives for the enforcement of contracts: within the meaning of which a mortgage security does not come. A mortgage contract is no more a remedy than the bond which accompanies it-they are both the evidence of and security for the indebtedness, and the one is as much subject to legislative alteration as the other: they are both the subject matter and the foundation of suits, and these suits as constituting the means of enforcing the one or the other contract, is the remedy afforded by the law.

The remedy is subject to legislative modification, the mortgage contract is not. Its terms were agreed upon by the parties, and they afford the rule for the measurement of the rights of mortgagor and mortgagee.

By the power contained in the mortgage, the mortgagee was authorized, upon non-payment of the money mentioned in the accompanying bond, to sell the mortgaged premises at public auction, and on such sale to execute to the purchaser a deed of conveyance in law, pursuant to the statute in such case made and provided. The statute thus referred to, and embodied in the mortgage, became as much a part of the contract as if the terms of its provision had been literally inserted therein. The statute provided, that the officer or person making the sale should execute the deed and endorse thereon the time when it would become operative in law, and deposit it with the register of deeds; that if the premises were not redeemed within two years, the register should deliver the deed to the purchaser; that the deed from the expiration of the time to redeem, should vest in the purchaser the mortgagor's interest in the premises, and that in case of redemption the register should destroy the deed.