Western Kansas world. [volume] (WaKeeney, Kan.) 1885-current, 1895-12-21

This brings us to consideration of the
change of our law as to the redemption of real
estate. Prior to 1893 lands could be sold for
less than two-thirds of their appraised value
unless appraisement was waived in the mort
gage or the bond or promtsSory note which it
was given to secure. but, in case of such
waiver the order could not issue for the sale of
the lands until six months after the rendition
of the Judgment The act of 1898 does not
operate upon the rights of the mortgage until
his claim as such has been extinguished either
wholly or to the full extent of the proceeds
OF the sale OF the mortgaged property. The
mortgagor, 1t is true, may redeem the land
within certain time by payment of the sale
price and interest thereon, but this is matter
wholly between him and the purchaser. II the
mortgage or judgment creditor has deemed it
best to become the purchaser and
thus voluntarily change his relation it
any just cause of complaint. BY the mortgage
contract the real estate was pledged for the
payment OF the debt subject TO the equity of
redemption. The state, by its proper of1cef,
has at his instance sold the property for it's
payment and after he gets the proceeds of the
sale he has no further claim upon that prop
erty. although he may proceed by general ex-
ecutlOn to obtain any balance due by seizure
and sale OF other property. In this state the
common law attributes OF mortgag eS have been
by statue wholly set aside and ancient theories
demolished The mortgage has mere secur-
ity creating a lien upon the property, but vest
ing no title, and giving no right of possession
whatever, either before after breach The
statute confines the remedy of the mortgagee
to an ordinary action and sale Of the mortgaged
premises. (WaterSon VS.. Devoe IS, Kan, 223-
233) }" real estate mortgage conveys no
estate or title in whatever form the mo rtgage
may be drawn. It creates only lien upon the
mortgaged property. And such lien can be en-
forced only by a judgment order of the dis
trict court. holder of a real estate mortgage
cannot. even after condition broken, take pos
session of the mortgaged property or of the
rents or profits thereof, except by consent OF
all the parties, or by an action in the district
court, and he cannot realize upon his mortgage
except by judgment of such court And this is
true whatever the form cf the mortgage may
be- Where the mortgaged property is not
sufficient security for the mortgage debt, the
district court may in some cases appoint re-
ce1ver to take charge Of the property and to re-
ce1ve the rents and profits thereof But, in no
case can the holder of the mortgage, without
suit, and without the consent of the mortgagor
or his assignee, take possession of either the
real estate mortgaged or the rents profits
thereof" (Seckler VS.. Delfs, 25 Kan, l59-16j.)
The opinion then discusses at length
the law of 1898 and the result of it's
operation, and says:
real estate mortgage is not what it pur-
ports to be on its face anywhere. In Kansas it
has been Saorn OF all its common law incidents
as we have seen, and this is true in most of the
other states. 1t may be stipulated in a mort
gage that upon default of payment of interest
and principal the mortgage shall be entitled
to possession OF the premises. 1t is vain. 1t
may be solemnly agreed that in such case the
rents and profits shall be applied towards the
satisfaction of the debt and interest. It is as
nothing. 1t may be provided that for any par
ticular delinquency a receiver may be appoint
ed 1t is waste OF words. The mortgagor
may even be driven by his necessity to bargain
away in the mortgage his equity of redemp-
ton. Equity will treat it as void For any
such purpose the Kansas short form of mort
gage as authorized by the statute (par 1886
Gen. Stat 1897 which contains not a word
upon any of these subjects is no less potent
than the most tedious ironclad instrument
ever devised by the wit, and cunning and av-
arice of man. All such clauses are treated by
the courts as if they were not.
In reference to the case cited from
Wall, Chief Justice Martin says:
The equity of redemption is regarde1 by the
supreme court of the union as an estate dis
tinct from the right vested in the MORTGAGE
and this estate is indefinite in its duration
In accordance with the English rule the time
given in the first instance is six months and
then it may be extended once or oftener at the
discretion OF the chancellor And in granting
these extensions according to the circum-
stances of each case the federal courts of
equity have not the remotest idea of impair
ing the contracts" They are endeavoring only
to enforce them in manner dictated by an en-
lightened system of jurisprudence that seeks
not the financial ruin of the mortgagor in the
application OF his property to the satisfaction
Great reliance has been placed by counsel
for the defendant in error upon the authority
of Bronson vs. Kinzie, supra, and it would be
conclusive against our position if a Kansas
mortgage Of 1885 is to be governed by the rules
applicable to the Illinois instrument of date
July 10, 1888, which was enforced in that case, |
in which it appears that under the laws of Illi- |
nois then existing the mortgage contract was
in law what is purported to be on its FACET |
gave the legal title and the right of possession
to the mortgage in default of payment-and |
this no Kansas mortgage has ever done what |
ever may have been its stipulationS |
1t, therefore, could not be otherwise |
than that the laws of Illinois formed |
part of the very obligation Of the con-
tract-and the rights vested by its terms with |
the sanction of the laws of Illinois could not be
Invested by any subsequent law of that state |
Where remedy is agreed upon in the con- |
tract itself. with the sanction of the state law
the obligation and the remedy are indistin- |
guiShable and in such case it is entirely proper
to say that the subsisting remedy is a part Of |
the obligation of the contract On the other |
hand it is safe to say that the general remedies |
afforded by the state juris prudence and prac-
tiee entirely aside from anything contained in |
the contract, never constitute any part of the |
obligation and may be changed from time to |
time, and this is the doctrine of Bronson VS..
Kinze.
the modes of proceedings in courts, it is d m
cult to frame a process of reasoning which |
would forbid it from regulating the pro-
cedure upon the foreclosure of mortgages as /
to define and make more certain the indefinite
estate implicitly reserved by every mortgagor
of real property, and called into active exist
ence only by the foreclosure, and which indef-
mite estate is extended by the federal courts Of
equity for six months in the first instance and
once or oftener according to the /
of the case. Even if the statute
in question should impair the remedy former
" grantable upon foreclosure, yet it should
not for this reason be held invalid for there is
no constitutional inhibition against an impair
ment of the general remedies for the enforce
menG of broken contracts Each and every
of the special examples just cited is an in
stance of the impairment abolition of a
remedy allowable or in force when the obliga-
ton occurred.
Upon the whole it does not appear that any
Judgment or decision of the supreme court Of |
he this rf RI h0ld