The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1895-12-07
Chief Justice Martin Reverses
Chief Justice Horton.
Mortgages Made Prior to the
New Mortgage Law
NOW HELD AMENABLE
To Its Provisions by Today's
Decisions.
Contrary to Justices JOhnstOn's
and Horizons Ruling.

Ex-Chief Justice Albert Fl. Horton was
reversed by Chief Justice Martin
in the supreme court today in the
famous mortgage redemption case.
The legislature of 1898 passed a law
known as the mortgage REDEEM ption law,
chapter 109, session laws of 1898. Ac-
cording to this law any person holding
land on which there was a mortgage has
eighteen months in which to redeem the
land after the land is ordered sold I'M
der foreclosure proceedings and before a
deed can be executed.
One of the first cases carried to the su-
preme court for the purpose of testing
the constitutiOnality of this law was u
case from Shawnee county in which Mr..
J. L. Beverly of North Topeka was in
terested, the case being entitled John L.
Beverly va Martha Barnitz.
George A Kirkland, who owned a
quarter section of land in this county,
borrowed $1,000 and gave mortgage on
his land to Martha Barnitz. The land
was sold to J. L. Beverly, subject to the
mortgage.
In January, 1898. an action to fore
close this mortgage was commenced.
January 8, 1894, the district court order
ed the property sold, and on February
II the sheriff sold the property to Martha
Barnitz, the holder of the mortgage, for
$4,000
MIR. Beverlv's attorney then went
into the district court and asked the
court to refuse to confirm the sale until
he had year and half in which to re-
deem the property, as provided by the
law passed by the legislature the previ-
| Gus year
The district court refused this request
and ordered the sale confirmed and d
deed executed.
Mr.. Beverly appealed the case to the
supreme court on proceeding in error
and at the March sitting of the supreme
court this year, 1895, the famous decision
affirming the district court and holding
that the mortgage redemption law did
not apply to previous or existing con-
tracts, was delivered by Chief Justice
Horton. Justice Johnston held with
Judge Horton and majority of Tire
court made that opinion the law, Justice
Allen dissenting.
When Judge Horton retired from the
supreme bench and was succeeded by
Judge Martin as chief justice the attor-
neys in this case filed motion asking
for rehearing. which was granted and
has now resulted in the former opinion of
the court being reversed
The syllabus in this case. written bv
the court is as follows: Chapter 100
Session laws of 1898, commonly known
as the redemption law, whether applied
to existing or future contracts, is not in
conflict with the provision of the federal
constitution, that mo state shall pass any
laws impairing the obligation of con-
tracts"
The opinion in the case which is very
long is written by Chief Justice Martin,
who. among other things says: "A real
estate mortgage is not what it purpoVts
to be on its face anywhere In Kansas il
has been shorn of all its common law in.
| cidents and this is true in most of the
other states"
Justice Allen, who dissented from the
previous opinion of the court in the case,
now unites in making Judge Martins
views the ruling opinion of the court,
and Justice Johnston who voted with
| Judge Horton, now dissents.
Justice Johnston, in his dissenting
! opinion today, says he is still satisfied
with the view of the case expressed last
| spring in the opinion of the court writ
ten by Judge Horton.
Under this ruling of the supreme
court the mortgage redemption law of
1898 applies to all Kansas mortgages no
matter when made, and if a mortgage
made in 1882 should be foreclosed today
and the property sold, the holder of the
land would have year and half before
| the deed is executed in which to redeem
his prODerty