Gross v. United States Mortgage Co.

after stating the foregoing facts, delivered the opinion of the court.

The first point to be considered relates to the jurisdiction of this court. The defendant in error insists that it does' not appear from the record that the decision of the Supreme Court of Illinois was adverse to any asserted right under the Constitution, laws, or treaties of the United States, nor that the judgment or decree complained of could not have been passed without the determination of any such federal question. Dugger v. Bocock, 94 U. S. 603 ; Murdock v. City of Memphis, 20 Wall. 590 . This proposition depends upon the inquiry whether the opinion of the State court, made part of the transcript, can be examined for the purpose of ascertaining the grounds upon which that court based its final decree.

In Gibson v. Chouteau, 8 Wall. 314 ; Rector v. Ashley, 6 Ib. 142, and Williams v. Norris, 12 Wheat. 117 , it was ruled that

“ If this court should entertain jurisdiction upon a certificate alone, in the absence of any evidence of the question, in the record, then the supreme court of the State can give the jurisdiction in every case where the question is made by counsel in argument.”

To the same effect are Lawler v. Walker, 14 How. 149 ; and Railroad v. Rock, 4 Wall. 177 . But in Murdock v. City of Memphis, 20 Wall. 590 , the subject was again under consideration, by reason of the omission from the act of- 1867 of that provision in the 25th section of the act of 1789 restricting this court, when reviewing the final judgment or decree of the highest court of a State,' to the consideration of such errors as appeared “ on the face of the record.” It'was there said, that, in determining whether a federal question was raised and decided in a State court:

“ This court has been inclined to restrict its inquiries too much by this express limitation of the inquiry ‘ to the face of the record.’ ” “ What was the record of a case,” the court observed, speaking by Mr. Justice Miller, “was pretty well understood as a common law phrase at the time that statute was enacted. But the statutes of the States, and new modes of proceedings in those courts, have changed and confused the matter very much since that time. It is in reference to one of the necessities thus brought about that this court long since determined to consider as part of the record the opinions delivered in such cases by the Supreme Court of Louisiana. Grand Gulf Railroad Company v. Marshall, 12 How. 165 ; Cousin v. Blanc's Executor, 19 id. 202 . And though we have repeatedly decided that the opinions of other State courts cannot be looked into to ascertain what was decided, we see. no

reason why, since this restriction is removed, we should not so far examine-those opinions, when properly authenticated, as.may be useful in determining' that question. We have been in the habit of receiving the certificate of the court, signed by its chief justice or presiding judge, on that point, though not as conclusive, and these opinions are quite as satisfactory, and may more properly be treated as part of the record than such certificates.”

The. opinion of the State court in the present case is properly-authenticated, and there is, in addition, the certificate of its chief justice, showing that the present plaintiff in error not only claimed that the deed of trust by the National Life Insurance Company gave, when- executed, a lien superior to that asserted by the United States Mortgage Company under Lombard’s mortgage, but that the act of the legislature of Illinois, in force July 1st, 1875, in so far as it attempted to validate mortgages like the one taken by that company from Lombard, was in conflict, as well with the contract clause of the Constitution of the United States, as with that part of the 14th Amendment which prohibits a State from depriving a person of property without due process of law; further, that the latter claim was decided adversely to plaintiff in error.

We cannot, therefore, doubt that in the existing state of the law it is our duty to examine the opinion of the Supreme Court of Illinois, in connection with other portions of the record, for the purpose of ascertaining whether this writ of error properly raises any question determined by the State court adversely to a right, title, or immunity, under the Constitution or laws of the United States and specially set up and claimed by the party bringing the writ. Any difficulty existing upon this subject is removed by that .provision of' the Revised Statutes of Illinois which requires, not only that the justices of the supreme court of the State shall deliver and file written opinions in cases submitted to it, but that “ such opinions shall also be spread at large upon the records of the court.” Rev. Stat. Ill. 1874, p. 329, ch. 37, §16. This statutory provision would seem' to bring the case within the rule which permits an examination of the-opinions of

The opinion of the State court, 93 Ill. 483 , in this case, shows that the decree is based upon these grounds: 1. That the laws of Illinois, in force when the mortgage of August 22d, 1872, was executed, as well as her public policy, as disclosed in legislative enactments for many years, prohibited the United States Mortgage Company from talcing mortgages upon real property, in that State, to secure the repayment of money, loaned; consequently, that no title passed to it under or by virtue.of that mortgage. 2. That such mortgage was, however, validated by the act in force July 1st, 1875. This last proposition was, as the opinion shows, contested in the State court by the present plaintiff in error, upon grounds indicated in the certificate of its chief justice.

"We are here-met by the suggestion that the decree can be sustained, apart from' the validating act of 1875, upon the ground that the mortgage of Lombard to the United States Mortgage Company was not inconsistent with the statutes of Illinois in force at the time of its execution, or with any public policy declared in the legislation of that State. This view is based upon Stevens v. Pratt, 101 Ill. 206 , and Commercial Union Assurance Company v. Scammon, 102 Ill. 46 , determined subsequently to the decree in this case. Those cases directly involved the validity of mortgages upon real estate taken from other parties by the United States Mortgage Company prior to the act of July 1st, 1875. The decision in each was that a loan made by a foreign corporation, prior to that act, to a citizen of Illinois, and secured by mortgage, was neither prohibited by any legislation of that State, nor contrary to its public policy, and that such mortgage could be foreclosed and the title to the mortgaged real estate thereby passed. So much of the opinion of the Supreme Court of Illinois in this case as held to* the contrary was expressly declared in Stevens v. Pratt and Commercial Union Assurance Company v. Scammon, to-be erroneous.

But it is contended, in behalf of plaintiff in error, that the decree below, in so far as it declares Lombard’s mortgage to be

That the act in question is not repugnant to the Constitution, as impairing the obligation of a contract, is, in view of the settled doctrines of this court, entirely clear. Its original invalidity was placed by the court below upon the.grbund that the statutes and public policy of Illinois forbade a foreign corporation from taking a mortgage upon real property in that State to secure a loan of money. Whether that inhibition should be withdrawn was, so far at least as the immediate parties to the contract were concerned, a question of policy rather than of constitutional power. ' When the legislative department removed the inhibition imposed, as well by statute as by the public policy of the State, upon the execution of a contract like this, it cannot be said that such legislation, although retrospective in its operation, impaired the obligation of the contract. It rather enables the parties to enforce the contract Avhich- they intended to make. It is, in effect, a legislative declaration that the mortgagor shall not, in a suit to enforce the lien given- by the mortgage, shield himself behind any statutory prohibition or public policy which prevented the mortgagee, at the date of the mortgage, from taking the title which was intended to be passed as security for the mortgage debt. We repeat here what was said in Satterlee v. Matthewson, 2 Pet. 380 , and, in substance, in Watson v. Mercer, 8 Pet. 88 , that “ it is not easy to perceive how a law, which gives

“ that the right of a defendant to avoid his contract is given by statute, for purposes of its' own, and not because it affects the merits of his obligation; and that whatever the statute gives; under such circumstances, as long as it remains in fieri, and not realized by having passed into a completed transaction, may, by a subsequent statute, be taken away. It is a privilege that belongs to the remedy, and forms no element in the rights that inhere in the .contract. The benefit which he has received as the consideration of the contract, which, contrary to law, he actually made, is just ground for imposing upon him, by subsequent legislation, the liability he intended to incur.” Ante, p. 151.

But it is' contended that, by his purchase, prior to the passage of the act of 1875,4 of the note secured by the deed of trust given by the National Life Insurance Company, the plaintiff in error acquired a vested right of property, of which he could not, under the Fourteenth Amendment of the Constitution, be deprived by subsequent legislation. We do not perceive that Gross'was, by that act, deprived of any substantial right of property. If, as held by the court below, in this case, the title to the real estate did not pass from Lombard at the date and by virtue of his mortgage, and if, because of its invalidity under the laws and public policy of the State, he was at liberty to convey a complete title to the insurance company, we have seen that the latter took the title subject to the mortgage, and, in addition, expressly assumed to pay the amount of the debt due from Lombard to the mortgage company. Apart from the supposed inability of the mortgage company, resulting from the statutes and public policy of the State, to take title by mortgage to the premises, Lombard was personally liable to it for the money he had borrowed. He could not have escaped that personal liability upon the ground that the mortgage, in so far as it gave a lien upon the property, was invalid. The claim of the company against him for the money he obtained

The federal question having been correotl/y determi/ned, tibe decree is affirmed.