Baxter Springs news. [volume] (Baxter Springs, Kan.) 1882-1919, 1895-12-21

wholly or 10 the full extent OF the proceeds
OF tho sale OF the mortgaged property. Tho
mortyagor. Il Is true, may redeem tho land
within certain time by payment OF tho sale
price and interest thereon, but this 10 matter
wholly between him and the purchaser. II tho
mortgage or judgment creditor has deemed II
host TO become tho purchaser md
thus voluntarily change his relation. Il
Is diflcult to SEQ how no has
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 oficer.
has ut his instance sold tho property for Its
payment and after he gets tho proceeds Of the
sale he has no further claim upon that prop
erty although he may proceed by general OK.
ecution TO obtain any balance duo by seizure
and sale OF other property. I'm this state tho
common law attributes OF mortgages have been
Sy sa.uo Sno,y SO. ss,ao anu s aasUm .,o s"rr
inv creating lien upon the property, but vest
Ing no title and giving no right OF possession
whatever. either before or after breach. Tho
statute confines the remedy Of the morlgarce
TO an ordinary action and sale Of tho mortgaged
premises. (Waterson Va Dcvoc II, KAN. ~
23a)" real estate mortgage conveys no
estate or title. In whatever form the mortgage
may be drawn. II creates only lien upon tho
mortgagcd property And such lien can be en-
forced only by judgment or order OF the dis
trlct court. A holder OF q real estate mortgage
cannot even after condition broken. take pos
session Of tho 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 CT the mortgage may
be. Where tho mortgaged property Is not
sufficient security for tho mortgage debt, the
district court may In some cases appoint re-
celvcr TO take charge OF the property and TO ro-
ceivc the rents and profts thereof hut, In no
case can the holder OF the mortgage, without
suit. and without the consent OF the mortgagor
or his assignee, take possession Oh ei.ncr s.o
,ssreos" fscc,,,cr va pelfs. Is kan. isp-i6i.I
Nh. on,,;on thon discusses Mt lcnrth
- -. "a "a.
tine law Oh iovo anu the 'esui' VI 'S'
operation, and says:
A real estate mortgage Is not what Il pur-
ports to be on its face anywhere In Kansas IL
has been shorn Of all It's common law incidents
ms VIC have seen, and this is true In most OF the
other states. II may be stipulated In o mort
gage that upon default OF payment OF interest
and prIncipal the mortgagec shall be entitled
10 possession of the premises II II vain. II
may be solemnly agreed that In such case the
rents and profits shall be applied towards tho
satisfaction OF the debt and interest It is as
nothing 1t may be provided that for any par
ticular delinquency receiver may be appoint
I'd t. is n waste Of words. The mortgagor
NAV even be driven by his necessity to bargain
away In the MORTGAGE his equity Of rcdemp-
ton Equity will treat 1t as void. For any
such purposc the Kansas short form OF mort
cnvc ms authorized by the statute (par $3.50
CEN. Stat. 1881 which contains not q word
unon anv of these subjects is no less potent
than tho most tedious ironclad instrument
ever devised nv the wit. and cunning and ay-
aricc Of man. All such clauses are treated BY
tho courts as n they were not
,..oro., % ,ha ,asa c;tad from a
wall, Chiet JUSTICE Martih says
The equity OF redemption Is regarded by the
supreme court OF the union Us an estate dis
tinct from the right vested In the mortgage
md 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 oftencr ut 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 cndeavoring 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 tho satisfaction
OF his debt -
Great reliance has been placed oy counsel
for the defendant In error upon the authority
OF Bronson vs.. kinzie, supra. and IL would DO
conclusive against our position II Kansas
mortgage Of 1885 Is 10 be governed by the rules
applicable to the Illinois instrument OF date