The following dissenting opinion was drawn by
Tapley, J.The complainants in this bill being an existing corporation, duly chartered and organized under the laws of this State, on the 15th day of October, 1852, made a mortgage to certain *58persons named as trustees, and for purposes indicated in the mortgage. The description in the mortgage is of “ all their corporate property, real and personal, and the franchise of said company,” “ and the right of way.”
On the 18th day of May, 1859, the said trustees, claiming there had been a breach of the conditions of this mortgage, gave' notice that they claimed to foreclose it, and proceeded to eífect a foreclosure of the same, by pursuing the mode pointed out in R. S. of 1857, c. 51, § 55.
It 'is now claimed that the proceedings thus had, and the lapse of time thereafter without redemption, have invested the respondents with all the chartered rights of the complainants.
The complainants, on the other hand, contend that the procedure was wholly ineffectual, because inapplicable to this mortgage.
The mortgage thus sought to be foreclosed was made on the 15th dav of October, 1852. ,•
The statute under which proceedings were had for the purpose of foreclosure was first passed in 1857.
One question discussed is whether this statute affected mortgages made before it was passed.
The first section of the act referred to (now § 53, c. 51, of R. S. of 1857) provides that “ Whenever a railroad corporation shall have mortgaged its railroad and franchise to secure the payment of any of its bonds or coupons, whether such mortgage was made directly to the holders of such obligations or to trustees for their use, the refusal or neglect to pay any such bond or coupon within ninety days after a presentment (subsequent to its pay-day) to the treasurer or president, for payment, shall be deemed a breach of the condition of the mortgage.”
This is the only section affording any light in the settlement of this question.
An act of the legislature will not be regarded as retroactive, unless the intent plainly appear from the act itself, either by its terms or by necessary implication. The presumption of law is against it. This view has been expressed by many of the ablest jurists in this country and in England for many years, ,
*59Although it may seem like “but repeating household words ” to note any of them, yet I think a reference to a few of them now may be of utility.
In Mr. Sedgwick’s work on Statutory and Constitutional Law, may be found some comments and citations upon this matter. He says: “The effort of the English court appears, indeed, always to be to give the statutes of that kingdom a prospective effect only, uriless the language is so clear and imperative as not to admit of doubt.”
The principle, say the English Court of Exchequer (2 Excli. 22), “ is one of such obvious convenience and justice, that it must always be adhered to in the construction of statutes, unless in cases where there is something on the face of the enactment putting it beyond doubt that the legislature meant it to operate retrospectively.”
In an early case in N. Y. (4 J. K. 45), Thompson, J., said: “It may, in general, be truly observed of retrospective laws of every description, that tliey neither accord with sound legislation nor the fundamental principles of the social compact. How unjust, then, the imputation against the legislature, that they intend a law to be of that description, unless the most clear and unequivocal expressions are adopted.” Kent, J,, said, on the same case : “ I think it can be shown that the act cannot be adjudged to operate either as a new rule for the government of a past case, or as interpreting a former statute for the direction of the courts; and 1 should be unwilling to consider any act so intended, unless that intention was made manifest by express words; because it would be a violation of fundamental principles, which is never to be presumed.”
Various other cases are referred to in the same State, by the learned author, sustaining these propositions. In a case in Mississippi, it is said a retrospective operation should not be allowed unless required by “ express command or by necessary and unavoidable implication.”
“ It is a general rule, applicable to all laws, that, generally, they are to be considered as prospective, and not to prejudice or affect the past transactions of the subject. It is not intended by this rule *60that the legislature cannot, in some cases, make laws with a retrospective operation. But this effect is not to be given to a statute, unless such intention is manifestly expressed.” Whitman v. Hapgood, 10 Mass. 437.
“ For it must be admitted that all retrospective laws are repugnant to the principles of sound legislation and the permanent security of rights.” Inhabitants of Somerset v. Inhabitants of Dighton, 12 Mass. 383.
In our own court, in the case of Hastings v. Lane, 15 Maine, 134, Shepley, J., in delivering the opinion of the court, says: “ In the case of Dash v. Van Kluck, 7 Johns. 477, Kent, C. J., states it to be a principle in the English common law, as ancient as the law itself, that a statute, even of its omnipotent parliament, is not to have a retrospective effect. The same rule is recognized in Whitman v. Sapgood, 13 Mass. 464. And such must be regarded the settled rule unless the intention to have it operate retrospectively is clearly expressed.”
No statute is to be held retrospective or in violation of any constitutional provision when it affects rights, unless such shall be the necessary construction. Given v. Mart, 27 Maine, 212.
In the case of Bryant v. Merrill, 55 Maine, 515, decided by the court as now constituted, Dickerson, J., in giving'the opinion, savs: “A retroactive effect will not be given to a statute unless it clearly appears that such was the intention of the legislature.” The discussion in that case shows how rigidly the rule was adhered to, the judge saying, “ It is not from inference alone that a statute of such grave character should be held to have a retroactive effect.”
Citations, of this kind could be multiplied to great numbers, and from every State in the Union, showing how clear, exact, and rigid is the rule, and how strictly adhered to.
The same rule of construction prevails in the Federal courts. Judge Story, in Prince v. United States (2 Gall. 204), says: “ It is a general rule that statutes are to be construed to operate in futuro unless from the language a retrospective effect be clearly intended.”
*61In Harvey v. Tyler, 2 Wall. Sup. Ct. Rep. 328, the court say: “ It is a rule of construction that all statutes are to be considered prospective, unless the language is express to the contrary, or there is a necessary implication to that effect.”
Numerous other cases might bo cited, and they all concur in stating the rule as in this last case, viz., to give a retroactive effect to a statute, the court must find some expressed intention of the legislature in the act, that such was their design, or this conclusion must be forced by necessary implication from the act. It is not enough that the language of the act is susceptible of such a construction ; the intention must be “ manifest,” “ clear,” “ indubitable,” and free from doubt.
As before remarked, this may seem very much like the repetition of “ household words,” the reiteration of an “ undeniable proposition,” and, therefore, unnecessary; but the observation of all has, I think, led to the conclusion that such rules when they become maxims of the law lose all their application, somewhat of their force, unless occasionally examined with a view to understand their full force and legal effect.
In view of this rule, how stands the statute before us upon this question.
It will be noticed that the first, and indeed the controlling word used is whenever, and not wherever.
Wherever would have more clearly and distinctly signified “ in all instances; ” as if it had read, “ in all instances where a railroad shall have mortgaged, etc.” The word whenever is not so significant of a design to embrace all instances past and future. It is an adverb of time rather than place, and, speaking from that time, its indication is future rather than past. It is also coupled with the words “ shall have,” belonging to the future perfect tense, and indicating an act to bo done and perfected in the future, before the happening of some other event. These words used with the word whenever are strongly indicative of the future. Indeed, they hardly seem susceptible of any other construction.
This section also provides what shall be considered a breach of *62the mortgage; it introduces a statutory breach upon the happening of which only can the remedy provided be applied. It fixes the acts to be done. Requires demand, and names the persons upon whom demand is to be made. It fixes a specified time which must elapse before there is a legal default, none of which were required by any existing law.
If we hold this law retroactive we must assume these things were done and required with reference to past contracts, and supersede all former laws so far as they are inconsistent with it. We must ignore the rule of construction ire have found to be of such ancient date and so well preserved, and substitute in its stead the very reverse of it.
If we adhere to the rule, we shall find everything in the act consistent with it.
Its phraseology is literally prospective. It requires a violent hand to make it otherwise. Its provisions in substance, as well as in form, are all consistent with prospective action only. To assume that the legislature intended to declare there had been no default in any past mortgage of this character, except where the specific demand contained in this act had been made, and the time therein mentioned had elapsed, is to charge upon them an act neither creditable to their'intelligence or integrity.
If thex-e had been a breach in existing contracts of this kind, under existing laws, there was a manifest impropriety in undertaking to declare that there had been none, or to render nugatory the defaults then existing.
If there had been no such breaches in the past, there ivas no occasion for retroactive legislation concerning them ; in any event it would seem that so much of the act was designed to be prospective only.
To these suggestions- may be added the inquiry, by way of argument, if the legislature had designed this statute, so important in all its bearings, a statute affecting materially both public and private rights; one in which the new element of transferring a franchise, and rights acquired under the law of eminent domain is introduced, *63should have a retroactive effect, would they not have declared it in plain and unmistakable terms? Is not the absence of clear, unequivocal expression of such design very strong proof of the absence of such design ?
Now looking at this act, as we find it upon the statute book, is there anything in it which “clearly” indicates the design of the legislature to make it retroactive ? Does it by “ express provision ” require such a construction ?
Does such a construction arise by “ necessary implication ” from its provisions ?
I think those questions must be answered in the negative.
Instead of these things appearing, it seems to me the contrary appears, and instead of being a case requiring the court to give it a retroactive effect, it is one by its own terms forbidding such a construction.
It is admitted that all the proceedings had for the purpose of foreclosure have been had under the statute of 1857, and it follows, if the statute was not retroactive, they have acquired no title by-virtue of its provisions.
It is further argued that if this statute be regarded as retroactive in its operation and affecting the mortgage in this case, it would impair the obligation of the mortgage contract and be invalid as to these complainants.
If it should appear, upon examination, to operate injuriously upon existing mortgages, it would present another strong reason why the court should not give it a retroactive effect, and this reason w;ould bo equally strong and cogent whether it affected the one party or the other injuriously, for we cannot hold it retroactive as to one party and not as to the other.
The party whose interests are operated upon beneficially might not bo in a condition to complain of the change in the law, while the party whose rights were injuriously affected might; but the fact that the rights of one party to the contract were injuriously affected would raise a strong presumption against the idea that the statute should operate upon past contracts irrespective of the posi*64tion they occupy, in any case before the court. The same party might in one case be complainant, and in another respondent, and the statute of retroaction in one case must be held to be so in the other.
This leads us to the consideration of whether or not any change in the law was affected by the statute, and what that change was.
It will not require much argument to show there was a change, and that a change was designed. We can hardly suppose the legislature went to work to simply reenact that which was in existence, but that in such a statute important changes were designed, and it is only necessary to read the statutes, as they existed, relative to mortgages in 1852 and the statute of 1857, to lead to the conclusion, that, in point of fact, important changes were made.
In this connection it is well to note that the statute of 1857 was not one of substitution, but was either affording a new remedy where none existed, or a cumulative one where there was another provided by law. It did not attempt the repeal of any existing law. Such as were in existence remained as before.
At the time this mortgage was made, the statute of the State provided certain methods of proceeding, whereby the right which a mortgager had of redeeming real estate mortgaged by him might be foreclosed.
These statutory provisions are found in c. 125 of the R. S. of 1841.
Two classes of cases are distinctly provided for, and entirely distinct methods provided for each class.
The first class is where possession is had by the mortgagee (§§ 3 and 4), and the second class is where no possession is had (§§ 5 and 6).
, In the first class a possession obtained in either of the modes there described, “ being continued for the three following years, shall forever foreclose the right of redemption.”
. These modes were, first, an action at law, and obtaining possession under a writ of possession; second, entering into possession, *65and bolding the same by consent in writing of the mortgager, or tlie person bolding under him; and third, entering peaceably, openly, and not opposed, in the presence of two witnesses, and taking possession of tlie premises. In the last case certain certificates are required to be made and recorded.
Tlie second class of cases is where tlie mortgagee “ is not desirous of taking and holding possession of tlie premises.” In such case “ lie may proceed for the purpose of foreclosure, in either of the two following modes, viz.: first, he may give public notice in the newspaper, printed in the county where the premises are situated, or if there be none such, then in an adjoining county, or in the newspaper published by the printer to the State, three weeks successively, of his claim by mortgage on such real estate, describing such premises intelligibly, and naming the date of the mortgage, and that the condition in the same has been broken,, by reason whereof he claims a foreclosure ; and cause a copy of such printed notice, and the name and date of the newspaper in which it was last published, to be recorded in each registry of deeds, in which the mortgage deed is, or by law ought to be recorded, within thirty days after such last publication; or, second, he may cause a copy of such notice to be served and attested as a true copy, by tlie sheriff of the county or his deputy, in which the mortgager or liis assignee lives, if in this State, by a delivery to him in hand, or by leaving the same at his place of last and usual abode ,• and shall cause the original notice and the sheriff’s return thereon to be recorded within thirty days after such service in manner aforesaid.”
“Tlie mortgager, or person claiming under him, may redeem the mortgaged premises within three years next after taking possession, or publication or service of notice mentioned in tbe preceding sections, and if not so redeemed, his right of redemption shall be forever foreclosed.”
These are all the statutory provisions relating to tlie foreclosure or mortgages of real estate.
The same chapter by § 30 provides, that, “ When the condition of any mortgage of personal property has been broken, the mort*66gager, or any person lawfully claiming or holding under him, may redeem the same at any time within sixty days next after said breach, unless the property shall have been sold in the mean time, in pursuance of the contract between the parties, or on execution for the debt of the mortgager.”
This is all the statutory right of redemption given in cases of personal property.
With this view of the law before us it is well to recur to the mortgage to see what was sought to be conveyed. Upon examination of that it will be found to describe it as, “ All their corporate property, real and personal, and the franchise of said company including the road and superstructure, and all‘the land conveyed to said company by others,” “ as well as the right of way paid for, and all the buildings thereon, and the personal property, consisting of engines and tenders, passenger, freight, platform, and dirt cars, snow-ploughs, and apparatus of every description.” Here we have real estate, personal property, right of way, and franchise, eo nomine, all in the same instrument.
What corporeal things would be affected by proceedings under the statute relative to real estate, and what under that relative to personal property, it is not necessary now to determine.
That a franchise comes within the purview of either section before referred to, we think will hardly be contended by any. In the enumeration of the securities in the mortgage, it does not seem to be treated as belonging to either, but as an independent right, as indeed it is, incorporeal in existence. We are not aware that it has ever been regarded the subject of seizure, and sale upon execution.
A franchise, says Bouvier, is a certain privilege conferred by grant from the government, and vested in individuals, and has no inheritable quality. Substantially the same definition is given by Burrill.- Chancellor Kent says the same, and adds, “ corporations or bodies politic are the most usual franchises known in our law; these incorporated franchises seem', indeed, with some impropriety, to be classed by writers among hereditaments, since they have no inher*67itable quality, inasmucli as a corporation, in cases where there is no express limitation to its continuance by the charter, is supposed never to die, but to be clothed with a kind of legal immortality.” 3 Kent’s Com. 459.
It is undoubtedly a privilege which the sovereign power alone can grant, whether it be the king or the people assembled in legislative bodies.
Now what was the franchise in this case, specified in this mortgage as “ the franchise of said company.” A recurrence to the grant (its charter) will show substantially, it was the privilege of being a body politic and possessing the powers incident to such bodies; the privilege of taking lands of individuals in invitum for the purpose of constructing a railway ; and the right to construct, maintain, and manage such railway, and in so doing levy and collect tolls upon and from travelers thereon.
Now assuming the corporation had a right and full power to make a conditional sale and transfer of their franchise received from the State (the very right, among other things, to be a corporation), to what provision of the statute law was it subject ?
Was it subject to that which pertains to real estate ? Was the right to be a body politic real estate ? Is the right to construct a railway real estate ? Is the right to levy tolls upon passengers, when it is constructed, real estate ? Were these things designed to be embraced within a term that had for centuries been well defined, and used in this statute and those from which it was copied long before railroad franchises were thought of? Such an idea may well be characterized as ridiculous.
Were these rights appurtenant to the real estate of the company ? This would seem to be answered by the fact that they existed before the company had any real estate, and that they are the subject of specific grant, and that, too, from the sovereign power, and not possessed by any individual owner of the land they now own, and could not have passed from them to the corporation.
Another inquiry suggests itself, and that is, why docs it appertain any more to the real estate of the corporation than it does to its *68personal property, every particle of which comes to them long after the franchise has been granted and accepted.
It seems to me quite apparent that it is not subject to the pro vis- • ions of the statute before referred to (c. 125 R. S., 1841).
It is said if this be só, why should not the old common-law doctrine apply of a forfeiture of the entire right on failure of strict compliance with the terms of the deed ? Such, inevitably, would be the result if no relief from that forfeiture could, under any existing law, be obtained, and then we should have the anomalous case of one set of individuals owning the franchise, and another owning the real estate, personal property, and easement of a railroad, neither very valuable possessed alone, and one, the franchise, entirely useless without the other, and the right of redemption in the company property of little or no value, because the franchise had absolutely and irrevocably passed from them.
If one rule is applied to the realty, and another to the personal property, and still another to the franchise, there is this constant liability to separation and destruction by separation ; yet such must have been the case in 1856, when the complainants failed to pay the interest due on the obligations secured, if there was no other remedy than that found in the statute quoted. The franchise must have passed by irredeemable- forfeiture immediately; and the title passed to the personal property in the same way, at the expiration of sixty days after the breach, while the real estate and all its appurtenances, however extensive they were, remained the property of those who were the corporation; and we might here inquire, to whom passed the franchise and who became invested with the franchise named in the mortgage, made not to the holders of the obligations but to trustees for their benefit ? We are now contemplating the state of affairs prior to the passage of the act of 1857, upon the assurnption that it was competent for the company to make such a mortgage, and the only relief that could be given from the consequences of a non-compliance with the terms of the deed must be found in the statute we have referred to.
Assuming, then, as contended by the respondents, that there were *69no other provisions of law than those contained in the chapter referred to touching this matter, and that the statute of 1857 is retroactive, how stands the case ?
By the act of 1857, whenever a railroad corporation shall have mortgaged its railroad and franchise, certain proceedings may be had to foreclose the mortgage, and at any time within three years from the commencement of such proceedings the mortgagers, or persons claiming under them, were authorized to redeem by payment or tender of payment of the amount of overdue bonds and coupons secured by said mortgage (§ 55, c. 51, R. S., 1857).
This law, if binding and retroactive, would give a right of redemption from the forfeiture of the franchise where none before existed, and where, by the common law, it had actually been vested in others, and passed from these complainants a year before the act of 1857 was passed.
It appears there was a non-compliance with the terms of the deed in April, 1856, and for this these respondents proceeded, under the statute of 1857, to foreclose. As a practical question, where was the franchise from April, 1856, to' the time of the passage of the act of 1857 ? If it had passed to these respondents, was there, during that time, any law by which these complainants could be relieved from the effects of a forfeiture by the non-compliance with the conditions of the deed? The respondents say, none but the provisions of c. 125, R. S., 1841, and those, it will be perceived, were entirely inapplicable to this franchise. The consequence is, as before stated, that the statute of 1857 gives a right of redemption for the three years after a perfect indefeasible title had vested in the mortgagee and been thus vested nearly one year.
Then, as to the personal property, if the provisions of c. 125, R. S., 1841, were applicable to it, a perfect and indefeasible title in it had vested in the mortgagees, upon the expiration of sixty days from April 1, 1856, and long before the act of 1857 was passed; vet, regardless of this, the act of 1857 would give a three years’ right of redemption, instead of the sixty days which had elapsed.
To meet this obvious condition of things, concerning the franchise. *70it is said: “ In this case the franchise, the right to be a corporation and to exact and secure tolls and fare, becomes of little practical importance to the present defendant corporation. If the foreclosure of the mortgage, on the other property mortgaged, was perfect and sufficient, the statute authorized the body of bondholders to organize as a corporation and to, in effect, assume a new franchise.”
If this position is, in fact, true, we should find two corporations possessing the same franchise. The franchises of the old corporation would remain undisturbed, applicable to the whole line of road, and a -new franchise, authorizing the same thing to be done in the same place and at the same time, would be held by another body of individuals,— a state of affairs, to say the least of it, a little embarrassing.
But the answer to this proposition does not rest upon such anomalous or incongruous results, but is found, in the statute itself, giving not a new franchise, but transferring that belonging to the complainants.
The proposition made would entirely ignore the conveyance of the franchise, and proceed as if it was a nullity. Now upon recurring to the act of 1857 it will be seen that it applies only to those cases where the franchise is conveyed (§ 53, c. 51, R. S., 1857), and that “ if the foreclosure be effectual, it shall enure to the benefit of all the holders of bonds and coupons provided for in its condition. And they, their assigns, and successors are hereby constituted a company, incorporated and chartered, as of the day of the foreclosure, for all the purposes of the original company, with all the chartered and legal rights and immunities which pertained to the original company at the time of the foreclosure ; and it shall be the duty of the trustees,, by deed of release, to convey to such new company all the rights and interest by them held in said railroad, appurtenances, and franchise, and other property, by virtue of their deed of trust and the foreclosure thereof” (§ 57, same chap.).
These provisions of the statute, relied upon, afford a complete answer to the proposition.
Then if we hold the act retroactive and valid, the consequence *71is, tlie creation of a right of rodemption where none before existed, and an indefeasible title had accrued, as to the franchise, and the extension of a right of redemption as to the personal property which had vested long before the act -was passed, an extension in time very nmch beyond that which existed when the contract was made.
Such consequences, it seems to me, ought, in the absence of “ express words ” of retroaction or by “ necessary implication,” to forbid the construction contended for; and again I remark, the fact that such provisions operate beneficially to these complainants, cannot in the least degree change the fact that the statute is prospective only. In the consideration of this question it matters not who are complainants or who respondents. In familiar but expressive phrase, “ it is or it isn’t ” retroactive, and this irrespective of parties. Whatever their position as to each other, it acts with the same effect upon the contract, and cannot be retroactive as to one and prospective as to others.
In this connection I will merely advert to one other thing appearing in the case, viz., “the right of way” which is attempted to be conveyed; without, at this time, discussing the right to transfer an easement of this kind, acquired by virtue of the law of eminent domain, we may well inquire under what provision of the law for the foreclosure of mortgages, in c. 125 of K.. S. of 1841, would that kind of right fall.
Is it real estate ? Is it anything more or less than an incorporeal right ? The fee in the land remains in the original owner; his right to use, occupy, and assign is as full as before, if the use and occupation does not conflict with the limited right of use granted by the legislature. It must be remembered that it is not a general right of way that is granted, but one limited in its use and connected with the franchise granted at the same time. It is, to say the least, extremely difficult to see how, under the law as it stood in 1852, they could be separated, and it is quite evident if separated the right of way would be of no practical utility.
These and other considerations, excluded by the length to which this discussion has extended, impress my. mind with the impolicy *72and indeed injustice of a judicial decree, that a statute shall operate retroactively, when the legislative powers have not so declared, and I am clearly of the opinion, that, under the rules of construction applicable in such cases, the act is not retroactive, and its provisions do not affect mortgages in existence at the time it was made.
The question we have discussed thus far is, whether or not the act of 1857 was designed to be, and is, in fact, retroactive, affecting alike past and future mortgages.
It remains now to consider the other branch of the proposition, and that is its conflict with the constitutional inhibition of legislation which impairs the obligation of existing contracts.
Further argument or proof that it does this, seems to me to be unnecessary. The answer made is not a denial, but an allegation that this conflict is beneficial instead of-injurious to the complainants. Assuming, for the present, such to be the case, is the act any the'less in conflict with the constitutional provision referred to ? Does it make any difference whose interests are sacrificed in determining the naked question of conflict ? It seems to me this, to'o, is too plain for argument, and that the answer in nowise meets the material proposition that it is thus in conflict. If thus in conflict, and the parties were reversed, could the act be sustained as a rule of action ?
Judge Taney, in delivering the opinion of the supreme court of the United States, in Bronson v. Kenzie, 1 Howard, 311, says: “As concerns the obligation of the contract, upon which this controversy has arisen, they depend upon the laws of Illinois (Maine) as they stood at the time the mortgage deed was executed. ... In other words, the existing laws created and defined the legal and equitable obligations of the mortgage contract." If the laws of the State, passed afterward, had done nothing more than change the remedy upon contracts of this description, they would-be liable to no constitutional objection. . . . Whatever belongs merely to the remedy may be altered according to the will of the State, provided the alteration does not impair the obligation of the contract. But if that effect is produced, it is immaterial whether it is done by acting *73on tbis remedy, or directly on the contract itself. In either case it is prohibited by the constitution. ... It was undoubtedly adopted as a part of the constitution, for a great and useful purpose. It was to maintain the integrity of contracts, and secure their faithful execution throughout this Union by placing them under the protection of the constitution of the United States; and it would ill become the court, under any circumstances, to depart from the plain meaning of the words used, and to sanction a distinction between the right and remedy, which would render this provision illusive and nugatory; mere words of form affording no protection and producing no practical results. . . . Mortgages made since the passage of those laws must undoubtedly be governed by them, for every State has the power to prescribe the legal and equitable obligations of a contract to be made and executed within its jurisdiction.”
In Green v. Biddle, 8 Wheaton, 75, it is said, if the remedy afforded be qualified and restrained by conditions of any kind, the right of the owner may indeed subsist, and be acknowledged; but it is impaired and rendered insecure, according to the nature and extent of such circumstances.
The foreclosure of a mortgage and the sale of the mortgaged premises must “ take place according to the statutes in force at the time of making the mortgage, at least so far as the substantial rights of the mortgagee would otherwise be injuriously affected. Shuts v. Peabody, 7 Blackford, 613; Id. 154, cited in note 4 Kent’s Com. 182.
These citations fully sustain the position, that the rights of parties under such contracts must be determined by the law as it stood when they were made.
. In the apt and appropriate words of Chief Justico Taney, “ the existing laws created and defined the legal and equitable obligations of the mortgage contract.”
They sustain also the proposition, if the obligation of the contract is, in effect, impaired, whether done by acting on the remedy, or directly on the contract itself, it is equally in conflict with the provision of the federal constitution, before referred to, and cannot be sustained.
*74That there is such a conflict between the statute of 1857, if retroactive, and the constitutional provision referred to, it seems to me admits of no doubt, and we are again brought back to the allegation that this conflict is not injurious, but rather beneficial to the complainants, and, therefore, in this case immaterial.
It will be perceived that this proposition will make the act of 1857 a law for this contract or not, at the option of the respondents. If the respondents choose to adopt it, it is the law. If they choose to reject it, it is not. So that the complainants have this for their law or not as the respondents may choose. If it be thus optional with them, why may they not say to these complainants, that as to you, we choose to regard this as a valid and subsisting law, but as to the first mortgagees, as void ? As to our foreclosure effectual, but should the first mortgagees pursue the same course, ineffectual.
.The question here may have at present no other practical application than the determination of the principle invoked, for the respondents in their answer say that they “ have made arrangements with the first mortgage bondholders, to prevent the consummation of the proceedings to foreclose that mortgage.” Should these arrangements fail, the parties might stand different.
Is a law thus optional, or is it not rather a law applicable to the contract, and not subservient to the wishes of the person. Again we come to the phrase, it is a law or it is not.
It seems to me clear, that the law so far as ii impairs the obligation of the mortgage contract, in this case, is void.
Is there any rule of practice or pleading, at law or in equity, which prohibits a party from setting up the invalidity of law, relied upon by the opposite party ? I find no decided case, holding such a doctrine. All the authorities, when treating of this question, say such statutes are void.
It is indeed no rule of action in the construction and execution of those contracts thus affected by it.
The complainants do not rest upon this position, but present another which requires consideration.
They urge that the statutory provisions existing in 1852 for the *75foreclosure of mortgages do not reach and cover a mortgage like this, and were not designed so to do; that they applied to cases of the ordinary mortgage of real estate, and that no proceedings at all were required in case of the ordinary mortgage of personal property i
The remedy, if any existing, by which the right of redemption in the case at bar could be closed upon the complainants, they contend, was by appeal to the equity court.
This idea is strenuously opposed, and is as strenuously insisted upon.
1 find no clearer, better, and perhaps more authoritative statement of the law applicable to mortgages, where not modified by statute, than in the case already cited of Bronson v. Kinzie. Chief Justice Taney there says: “According to the long-settled rules of law and equity, in all the States wdiose jurisprudence has been modelled upon the principles of the common law, the legal title to the premises in question vested in the mortgagee, upon the failure of the mortgager to comply with the conditions contained in the proviso; and at law he had a right to sue for and recover the land itself. But in equity this legal title is regarded as a trust estate to secure the payment of the money; and, therefore, when the debt is discharged, there is a resulting trust for the mortgager. Conrad v. The Atlantic Insurance Co., 1 Pet. 441.
It is upon this construction of the contract that courts of equity lend their aid, either to the mortgager or mortgagee, in order to enforce their respective rights. _ The court will, upon the application of the mortgager, direct the reconveyance of the property to him upon the payment of the money; and upon the application of the mortgagee it will order a sale of the property to discharge the debt. But as courts of equity follow the law, they acknowledge the legal title of the mortgagee; and never deprive him of his right at law, until his debt is paid; and he is entitled to the aid of the court to extinguish the equitable title of the mortgager, in order that he may obtain the benefit of his security. For this purpose it is his absolute and undoubted right, under an ordinary mortgage *76deed, if the money is not paid at the appointed day, to go into the court of chancery and obtain its order for the sale of the whole mortgaged property (if the whole is necessary), free and discharged from the equitable interest of the mortgager. This is his rigid, by the law of the contract; and it is the duty of the court to maintain and enforce it without reasonable delay.”
If we regard this as a correct statement of the law where no statutory provisions exist modifying it, we are brought directly to the question whether any such statutory provisions existed in Maine at the time the mortgage in question was made.
We have before recited all that were then in force, and considered their inapplicability to the franchise and the right of way, and being inapplicable to them, their inaptitude as to the real and personal property embraced in the mortgage.
' That they fail to reach the necessities of such a case it seems to me quite apparent, and that there was no way under the provisions of those statutes by which any equity of redemption, held by the complainants under their mortgage, could be closed. Indeed, I understand counsel upon both sides to assert this, and rely upon it, the respondents urging it as a reason why the statute of 1857 should be held by the court to be retroactive.
At this point I deduce this argument, viz., if these statutes did not reach this mortgage, then they did not modify the law relative to it, as we find it stated by Chief Justice Taney, in Bronson v. Kinzie, and the law, as there stated by him, is applicable to this case for the same reason he gave for its being applicable to that case, viz., because “ no statute had been passed by the State, changing the rules of law or equity in relation to a contract of this kind, and it must, therefore, be governed, and the rights of the parties under it measured, by the rules above stated.”
If these statutes were apt and applicable to the case, there was no propriety in proceeding, under the statute of 1857, to foreclose, and certainly no necessity for the court to declare the act retroactive.
But it is suggested that even if this be so, this court has no *77jurisdiction, as a court of equity, to foreclose a mortgage, since the statutes provided a specific course of procedure in that matter, and several decisions are referred to in support of this position.
It is, I think, sufficient, or well at least to say here, in regard to those cases, that neither of them involved such a question, and the remark there made, concerning the power of this court to decree a foreclosure in any mortgage, is entitled to the force only which may properly be attached to a dictum of the court. The remark was made with a clear statutory provision conferring power as a court of equity in the foreclosure as well as redemption of mortgages. R,. S., 1841, c. 96, § 10. Another thing should be noted, the remark was made concerning mortgages clearly within the statutory provisions referred to in c. 125 of R. S. of 1841, and did not apply to those not within the provisions of that statute, for the court say: “ The legislature have prescribed with precision what shall bo done to foreclose a mortgage. It is not presumable that the legislature intended to superadd a power in this court to adjudge and decree a foreclosure xipon grounds other than what they have specifically enacted to be such.” If the case at bar comes within the class referred to, viz., those which had been specifically provided for, then the reasoning used might be applied to it, whether conclusive or not; but not being within that class, neither the reasoning nor the dictum which results from it applies. However this may be, it is said that in the revision of 1857 this provision was left put, the court having decided it had no jurisdiction to foreclose a mortgage, and, therefore, there was no such power possessed by the court at the time these proceedings to foreclose were commenced.
This last proposition is of little consequence if the former was correct. The leaving out of a statute something that was not in it before, does not very materially change it. If it was there, however, leaving it out would materially change the statute, and that subsequent to the making of the mortgage in this case.
It is very clear that it was provided by statute that this court, “ as a court of equity,” “ had power to hear and determine ” “ all suits for the redemption or foreclosure of mortgaged estates ” *78(R. S., c. 96, § 10), and possibly had such a case arisen as that at bar, instead of those cited, the court would have concluded that this provision applied only to such cases as were not provided for in c. 125; that recognizing the law, as stated by Chief Justice Taney in Bronson v. Kinzie, they would have recognized the ancient maxim, ubi jus, ibi remedium, and given it the reasonable application to such cases.
I do not, however, think it necessary to discuss any further, at this time, the effect of the introduction or exclusion of the specific words, “ or foreclosure,” upon any mortgage made while they remained upon the statute-book, for I feel quite certain that in any case where no other provisions of law are applicable, the power of this court over trusts would furnish a complete and ample remedy, so that all cases of mortgage, whether coming within the statutory cases provided for or not, would find a means of execution. In the language of Chief Justice Taney, “ In equity the legal title which vests in the mortgagee is regarded as a trust estate to secure the payment of the money; and, therefore, when the debt is discharged there is a resulting trust for the mortgager.”
The case at bar, however, differs from the ordinary mortgage or is not dependent upon this principle to raise a trust. It is upon its face a declared deed of trust made to others than the holders of the obligations to be secured, and it may well be doubted if it is at all subject to any of the rules pertaining to mortgages, being not a mortgage in the ordinary use of the word, but a deed of trust upon conditions annexed.
In this deed the trustees were appointed by the grantors, and named as trustees to hold the property as a security for others, and runs to the trustees and “ their successors in that trust.” ..
The fact that it is a deed with defeasance, does not make it any the less a deed of trust.
The relation of trustee and cestui que trust is created by the instrument itself, and existed from the moment of its execution.
It was, in its inception, a declared trust and a trust by deed.
The fact that there is a condition annexed to the deed, which, if *79performed, would extinguish the trust, does not change the character they hold in either before or after the breach of that condition.
They are, both before and after such breach, trustees, and must answer to all parties interested as such. Had the condition been performed, they would have been answerable as such, and if they take anything by non-performance, they take as such.
It appears to me they are clearly answerable as such in the present instance, and that the other parties claiming to hold under them, with a full knowledge of the trust, and indeed claiming under it, as well as claiming to be the only cestuis que trust, are properly made parties to the bill.
If it shall appear that the debt is discharged, the court may direct a reconveyance by the trustees. If not, it may direct such reconveyance, upon such discharge, at such times as it shall determine.
If it shall find the trustees guilty of fraud or negligence in the execution of the trust, of which the other parties were Or were not the guilty participators, such decrees can bo made as will do equity in the case.
If this view of the law, as applicable to this case, bo correct, it becomes apparent that the act of 1857, if it had been designed to be retroactive, would have so materially changed the rights of parties that it could not be sustained on application to the case at bar.'
I hold, therefore,
1. That the statute of 1857, c. 57, was not retroactive, and did not affect this contract.
2. That the statute laws of this State existing in 1852 and prior to 1857, providing methods of foreclosing mortgages of real estate, and those pertaining to personal property, were not applicable to the deed in this case.
8. That the statutes having in nowise modified or changed the rights of these complainants, the trustees held the title in trust, and are answerable as such.
4. That this court, as a court of equity having jurisdiction over *80trusts, may make suck decrees as the equitable rights of the parties may require.
5. That a master should be appointed with appropriate instructions, and such decrees should be made in the premises as shall secure the equitable rights of both parties.