Western Kansas world. [volume] (WaKeeney, Kan.) 1885-current, 1895-12-21
IMPORTANT DECISION.
The Supreme Courts Opinion on
Kansas Mortgages.
The New Redemption Law Applies to An
Contracts, Regardless of When Made
Text of Chief Justice Mar
tins Opinion.

preme court Chief Justice Horton
wrote the opinion of the court which
held that chapter 100, session laws of
1893, relating to the sale and redemp-
ton of real estate, does not apply to
mortgages given prior to the passage
of the act.
Justice Allen dissent in the opin-
ions which were rendered in the case
of Watkins VS.. Glenn and the case of
John l.. Beverly VS.. Martha Barnitz.
The latter case was appealed from
Shawnee county.
The attorney for j. L. Beverly sub
mitted a motion for rehearing.
In the Watkins VS.. Glenn case, which
was the basis of the leading opinion of
the court, written by Chief Justice
Horton, the syllabus was as follows:
l. Any subsequent law Of the state which so
affects the remedy as substantially to impair
and lessen the value of the contract, is forbid
den by article ], section 10, of the constitution
of the United States, which ordains that mo
state shall pass any law impairing the obliga-
tion of contracts"
3 Chapter 1O9 session laws of 1898, concern
ing the sale and redemption of real estate, has
no retroactive operation, and therefore does
not apply to mortgage contracts existing at
and before its passage. If the legislature in
tended the act to apply to such contracts, it
violates article l. section TO- of the constitution
of the United States
Justice Johnston concurred with
Chief Justice Horton, Justice, Allen
dissenting.
The syllabus of the opinion just rem
dered 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 provisions of the federal constitu-
ton that no state shall pass any law
impairing the obligation of con-
tracts."'
Following is synopsis of the opin-
ion of the court written by Chief JUS
tice Martin. Justice Allen concurred.
Justice Johnston, referring to Judge
Horizons opinion with the statement
that he would abide by it, therefore
dissented:
Chief Justice Martins Opinion.
On November /, 1885, George A Kirkland ex-
ecuted negotiable promissory note to Martha
Barnitz for 81 800 payable in five years with
interest at per cent. per annum and after
maturity at the rate Of II per cent. per annum,
which note was secured by mortgage on a
quarter section OF land in Shawnee county, APP
praisement being waived The land was after
ward sold to John L. Beverly, subject to the
mortgage. On January 81, 1898, an action was
commenced in the district court of Shawnee
county to obtain Judgment upon sa i'd note and
to forecloSe said mortgage On July z, 1893, a
personal judgment was rendered for 81 113 46,
bearing interest from hat date at the rate of
II per cent. per annum and S44.95 costs, and
the land ordered sold for the pay
ment OF said Judgment. On January 9,
1894, an order of sale issued and
the property sold to Martha Barnitz by
the sheriff on February u, 1894,for 81 ,000 Feb
ruary 10, 1894, John l. Beverly filed motion
asking that upon confirmation of the sale the
curt order, adjudge and determine that said
cal estate is subject to redemption as provid-
ed by chapter 100 Of the session laws of 1898
(Which took effect March II, 1880 and the sher-
if be ordered and directed to make to the pur-
chaser the certificate of sale mentioned in said
chapter, he being in actual possession of said
real estate by his tenant, the same never hav-
ing been abandoned but being occupied in good
faith This relief was refused by the court
and it was ordered that the sale be confirmed
anda deed executed by the sheriff to the
chaser of said premises, holding that said
chapter unconstitutional so far as intend
ed to apply to mortgages previously executed
and delivered. On proceeding Of error in this
court said Judgment affirmed. The COM
panion of Watkins VS.. Glenn was decided
at the same time and the opinions appeared in
55 Kansas. The plaintiff in error asks
hearing.
Does this statute impair the obligation of
this prior contract? If it does so in the slight
est degree it must be held unconstitutional as
to such contract. II on the other hand the act
affects only the remedy. some provision of
the contract which is imperative and void un-
der the laws of Kansas where the contract
was made, then it must be held valid. and all
legal Prescriptions, SO far this court is con-
cerned favor the validity of this act. (Cooley'S
Constitution. Linn. 266, 217.)
When Chief Justice Marshall delivered the
opinion OF the supreme court of the United
States in SturgeS vs. Browninshield, 4 Wheat
122, the learning upon the inhibition mo state
shall pass any law impairing the obligation of
contracts was we'll nigh exhausted Little
was left for judges of that tribunal but to ap-
ply the law as there clearly laid down. The
legislature of New York had enacted in 1911
inSolvent law which not only purported
to liberate the person of the debtor, but
to discharge him from all liability for
any debt contracted previous to his dis
charge surrendering his property in the
manner prescribed by the act, and it was held
that so far it purported to discharge the
debtor from his obligation without perform
ance it was invalid but not to releasing
the debtor from imprisonment, then a common
and very persuasive remedy. In that opinion
the court said:
"A contract Is an agreement by which
party undertakes to do or not to do particu-
lar thing. The law binds him to perform his
undertaking and this is of course the obliga-
tion of his contract. In the case at bar the
defendant has given his promissory note to
pay the plaintiff OF money before
certain day. The contract binds him to pay
that sum on that day. That is its obligation
Any law which releases part Of the obliga-
ton must, in literal sense of the word, i'm
pair it Much more must law impair it
which makes it totally invalid and entirely
discharges it.
LChief Justice Martin then cited another por-
ion of that decision pertaining to the distinc-
zion to the obligations of contracts. Citations
made are as follows: Mason Hale, IL Wheat
IN. Elao Ha1ac 0of o. Dan
nirnanS case. l03 u. S. ia: opinion OF Chief
Justice fancy: case of Bronson VS.. Kinzie,
How. 31l-3l6 Terry VS.. Anderson, 95 U. S. 62S;
Antoni VS.. Greenhow 107 q. S. 769-775 Life In
surance company Cushrnan, 1o8 q. S. 81:
Morley VS.. Lake Shore Railway company. 145
o. s. 162; Curtis VS.. Whitney, ID Wallace 60:
opinion of Justice Miller of the United States
supreme court in the latter case; Edwards VS..
kearzey, 90 u. s. $50.
Chief Justice Martin says the correct