The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1896-05-18
JUDGE MARTIN
REVERSED.
The Famous Mortgage Redemp-
tiOn Case From Kansas
Is Decided by the US. Supreme
Court Today.
LAW DOES NOT APPLY
To Contracts Made Before Its
Passage.
''Impairing the Obligation of
Contract, . Says Judge Shiras.
JUDGE HAZEN UPHELD
Shawnee County's Judge Sus-
tanned by Judge Shiras.
Much Rejoicing Among His
Friends in this City.
JUDGE HAZEN UPHELD
Shawnee COunty's Judge Sus-
tanned by Judge Shiras.
Much Rejoicing Among His
Friends in this City.

Washington, May 1S.-Justice Shi-
ras handed down the decision in the
Kansas mortgage redemption case to-
day. reversing the supreme court Of
Kansas.
The opinion mentions decisions of
Kansas supreme court under Horton,
and the second decision under Martin,
and then says:
1t is the latter decision which is
brought before US for review; the decis-
ions of this court are numerous in
which it has been held that the laws
which prescribe the mode of enforcing
q contract which are in existence when
it is made are so far a part of contract
that no changes in these laws which ser
iously interfere with that enforcement
are valid. because they impair it's Obli-
cation within the meaning or cOnstitu-
tion Of the United States.
Decisions are then cited. Opinion then
continues.
"YVe hold that a statute which au-
thorIzes the redemption of property sold
upon foreclosure of a mortgage where
no right of redemption previously exist
ed. or which extends the period Of re-
demption beyond the time formerly al
lowed cannot cOnstitutiOnaIy apply to
a sale under a mortgage executed be
fore its passag age.
Referring to the new mortgage re-
depmtiOn law. the opinion says.
The act carVes out for mOrtgagOr
or owner of mOrtgaged property one
state Of several months more than was
Obtainable under former law. with fun
right of possession, and without paving
rent or accounting for profits i'm the
meantime obviously this scheme OF
foreclosure renders it necessary for the
IlorI8aSee 70 hlmself bid or get others
to bid entire amount of mOrtgage debt
and thus i'm effect release the debtor
from his personal obligation 1--WE of
course have nothing to do with fair
ness or policy Of such enactments. but
it seems impossible to resist the con
VIctiOn that such a change in the law is
not merely substitution of one remedy
for another, but a substantial impair
ment of the rights of the mOrtgagee
as expressed i'm the contract. The iudg-
ment of the supreme court Of Kansas is
reversed and the cause remanded to
that court with directions to proceed
therein in accordance with this opin-
ion"
The title of the case was Barnftz VS.
Beverly and it came to the United
states supreme court on writ of
error.
Thus ends one of the hardest fought
legal contests in the state of Kansas
and the mortgage redemption law is
unconstitutional
A law was passed by the legislature
of 1893 giving a period of redemption
of eighteen months to all lands sold un-
der mortgage foreclosure and allowing
the mOrtgagOr TO retain possession of
the property during the eighteen
months allowed for redemption The
law also provided that the mOrtgag0r
amount bid at the sale. This law was
applicable to ali contracts, even though
made prior to the passage of the law.
The case in which this decision was
rendered was first tried in the district
court Of Shawnee county Martha Bar
nitz held a mortgage ON tract of land
located near RossviDe in this county
The land was owned by John l.. Bever-
ly. The mortgage was foreclOsed be-
fore Judge Hazen and he held the law
unconstitutional as applied to prior
contracts
nj Al. AIcNath. attorney for the de-
fendant took the case to the supreme
court. as he contended that the de-
fendant was entitled to possession un-
der the law during the period of re-
demption and a certificate should be
issued instead Of a deed as provided by
the new law
Ferry & Doran argued against the
constitutiOnality of the law as applied
to contracts made before the passage
of the law and they were sustained in
the supreme court by Chief Justice
Horton and Associate Justice Johnson.
though Associate Justice Allen dissent
ed from the opinion
After Horizons retirement and he was
succeeded By Chief Justice Martin Mr.
A1cMath filed a motion for rehearing
and this was allowed and the case
heard a second time in the supreme
court
In this decision CHIEF Justice Martin
held with Justice Allen and sustained
the cOnstitutionality of the law as ap-
piled to previous contracts. holding that
it merely affected the remedy and not
the obligation of the contract. Justice
Johnston d1ssenIed from this decision.
The case was then taken to the Uni
ted States supreme court and submit
ed in briefs on April Is, Ferry & DOran
and Valentine & GODDARD appearing
against the law, and Mr.. IcMath and
w. J. Scott for the law
The decision is of great importance as
it affects over $500. .OOO 900 of rnorteasys
ef- ..-T., in