The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1893-04-15
AN IMPORTANT DECISION.
judge X ed the FIRST Judge to Pass Upon tn
New Mortgage Law.

The mortgage law passed by the last
legislature has attracted much attention
from the holders of Kansas mortgages,
the makers thereof, attorneys and court
| officers. Whether it was legally passed
or not has been a mooted question and
what view the courts would take Of its
! general provisions has furnished much
| food for thought among the lawyers. All
the sheriffs of the state Were interested in
it because it provides that in any case
where mortgage has been foreclosed and
| the judgment creditor, or any one for him,
bids i'll the mortgaged property. the sheriff
making the sale shall not be entitled to
any commission as heretofore provided by
| law.
| 1t fell to Judge Reed, of the district
court, to first pass Oh this question, as 1t
came up in his court yesterday in the case
of A. g. Mckinley vs.. \. Smith ct al on
a motion made therein to retaX the costs
| This was case of foreclosure. The
decree had been entered and the property
advertised for sale long prior to March
18th, 1884, the date when the law went into
effect. The sale was made March D. 1898,
the property bid in by the judgment cred
! itor and the sheriff charged in the bill of
| costs an item of $36, as his commission on
the sale. The motion was really to ex-
punge this item from the costs, as Mr.
Dean Gordon. who appeared for the de-
PENDANTS, claimed the law forbade it. The
sheriff was the nominal party opposed to
| the motion and for him appeared Adams
& Adams and HalowelI e. Son. The
motion was argued at length and thor
oughly discussed from every standpoint
The attorneys for the sheriff interposed
many objections to the law, first that
its title An act to regulate the sale of
real estate and to provide for the
redemption thereof" was subject to the
constitutional objection that it contained
more than one subject, but the court
thought this point was not we'll taken. 1t
was also argued against the motion that
the law effected pre-. existing contracts
Judge Reed held on this point, and in
passing directly on the sherlff's right to
charge commission on the SALE that the
law applied to all sales made by the
sheriff after It went into effect, whether
they were under executions Oh judgments
previously obtained or not He said that
the sheriff was not a party to the existing
Judgment debtor or Judgment CREDITOR
that he had no vested right to the fees
provided by the old law, and that as to
him he was in no wise entitled to the pro-
lection of the federal constitution prohib-
iting the passage of laws violating the
obligation OF contract. The court also
announced that as to Dre-existing con-
cts'he would continue to have judg-
ments and DEGREES of real estate contain
clause for the sale of the same after
the expiration of six months from the
date of the decree instead of eighteen
months as provided by the new law Judge
Reed said that it had become necessary for
him to examine the question in order to
protect both the creditor and the debtor:
that he had done so fully and conceded
that in many states it had been held to the
contrary but ventured the assertion that
such decisions were contrary to the federal
constitution and that the supreme federal
court would so hold when its decision
should be invoked. The court did not
deem that the character of a Kansas mort
gage, which was mere lien, could be dis
tinguished as not falling within the con-
travention of the federal constitution and
he did not think common law
mortgage could be distinguished from
that named in the present law relating to
mortgages in this state. He regarded the
case of Brown VS.. kiuzie, Howard. -, as
directly in point upon the issue although
the case was basel upon common law
mortgage.
The motion was sustained and the sheriff
not allowed.hIs commission. He will APP
peal the case and his attorneys who so fully
brought out all the objections to the law
in the case will have the record in excel
ent shape and they are of the opinion that
1t Is Of such Importance TO so many people,
not only of this state, but to the eastern
holders OF Kansas securities, as to Justify
the supreme court in advancing it on tho
docket for an early hearing.
The question was also raised whether the
whole act had been properly passed
under the Kansas constitution and the
court held that it had Should Judge
Reeds decision be affirmed by the supreme
court, and it probably will as be meets
with fewer refersals than any judge in the
state, the law will, no doubt work "A revo-
luton in the matter of bidding in property
at a nominal price. TO prevent the payment
Of the sherff's commissions, aud then
holding the judgment over the head of the
debtor as IA cloud on the title of other
ms