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bond, with the costs and charges of sale, rendering the overplus,
if any, to Eonzie/'

In the opinion the court says (page 315): ''As concerns the
obligations of the contract upon which this controversy has arisen,
they depend upon the laws of Illinois as they stood at the time
the mortgage deed was executed/'

And (page 318): ''According to the long-settled rules of law
and equity in all of the states whose jurisprudence has been mod-
eled upon the principles of the common law, the legal title to the
premises in question vested in the complainant, upon the failure
of the mortgagor to comply with the conditions contained in the
proviso, and, at law, he had a right to sue for and recover the
land. • • • ."

And (page 319): "When this contract was made, no statute had
been passed by the state changing the rules of law or equity in re-
lation to a contract of this kind. None such, at leasts has been
brought to the notice of the court; and it must, therefore, be gov-
erned, and the rights of the parties under it measured, by the rules
above stated. They were the laws of Illinois at the time, and
therefore entered into the contract, and formed a part of it, with-
out any express stipulation to that effect in the deed.*'

Thus it appears that, under the laws of Illinois then existing,
the mortgage contract was in law what it purported to be on its
face — it gave the legal title and the right of possession to the mort-
gagee on default of payment; and this no Kansas mortgage has
*®^ ever done, whatever may have been its stipulations. It there-
fore could not be otherwise than that the laws of Illinois formed
part of the very obligation of the contract, and the rights vested by
its terms with the sanction of the laws of Illinois could not be
divested by any subsequent law of that state. Where a remedy
is agreed upon in the contract itself, with the sanction of the state
law, the obligation and the remedy are distinguishable, 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 practice, entirely aside from anything contained in
the contract, never constitute any part of its obligation, and may

Digitized by


Deo. 1895.] Beveslt v. Babnitc. S7S

be changed from tune to time; and this ia the doctrine of Bronaoa
▼. Einiiey 1 How. 811, aa quoted in the firat reference to the oaae
in thia opinion.

The caae ai Howard t. Bugbee, 24 How. 461, although from
Alabama, is in no way distinguishable from Bronson y. Kume,
1 How. 811, aa will appear from the briefs and the opinion, and
the authority of the earlier case was, of course, followed. In
Alabama, aa well aa in niinoia, the real estate mortgage waa
clothed with ita common-law attributes: Paulling t. Bairon, 8S
Ala. 9, 11; 1 Jones on Mortgages, sec. 18. Bronson t. Einaie, 1
How. 811, waa also decided in part upon a subsequent kw re-
quiring an appraisement and prohibiting a sale for less than two-
thirds of the appraised value, and there are other cases of like
nature, but aa appraisement laws and those regulating the equity
of redemption dep^d upon different prindplea, it is unneceesaiy
to occupy time now with their consideration.

It can be no objection to the statute under review that re-
demption comes after and not before the sale, ^^ for thia is
a feature fayorable to the creditor. He may now have the sale
adyertised aa soon aa his decree of foreclosure is entered, and he is
entitled to the proceeds whenever the sale is confirmed^ and thia
may be at any time afterward that the district court is in session.
The new law speeds the sale which is unfettered by any stay or
appraisement law. Neither can it be a valid objection that the
mortgagor or his assignee may redeem the property by paying its
sale price with interest thereon, for the utmost relief that the
courts can afford the creditor aa to the mortgaged property ia to
sell it and apply the proceeda to the payment of the debt If
any balance remains, the creditor must always look to other
property; and our state laws are as favorable to the creditor in thia
respect aa those of any other state in the Union, and, as we have
seen, more favorable than the ranediea administered by the
federal courts under their practice.

Section 24 of the redemption act in question haa been the sub-
ject of much critidam. It relates to the appointment of a re-
ceiver, under certain drcumstancea, after the sale, and the appli-
cation of the income up to the execution of the sheriff's deed; but
no question arises under that section in this case, for the record
does not ahow that any receiver waa ever appointed or applied for
under that section nor under paragraph 4849 of the General
Statutes of 1889. It would seem that, even if said section should
be held invalid, the other sections might yet stand firm.

There is a broad line between this case and Greenwood v. Bu^
AH. ar. n»., voi.. xux-is

Digitized by


274 Bbyerlt v. Babnits. [EansaSi

let, 52 Ejin. 424^ where the decree of foreclosure had been entered
and the rights of the parties fixed thereby prior to the passage of
said chapter 109 of the Acts of 1893.

If a state legislature may totally abolish imprisonment *®* of
the debtor as a means of enforcing payment^ if it may shorten the
statutes of limitation, if it may reasonably extend and enlarge ex-
emptions of property from sale for the payment of debts, if, where
coupons are by law made receivable in payment of taxes, it may
require such payment in the first instance in cash to be afterward
refunded and the coupons taken up, if it may reduce the rate of
interest on redemption from decretal sales, if it may lessen the
interest on former judgments, if it may require the holder of a
tax-sale certificate to give three months' notice of the time when
a tax deed will be applied for, if it may require transcripts of
judgments against a particular city to be filed in a certain office
as a prerequisite to payment, and divest the courts of the power to
grant remedies in force when the judgments were rendered, if it
may reduce the terms of court in number and duration, if it may
amend the laws as to attachments, garnishments, and receivers so
as to take away causes therefor which were before sufficient — if,
in short, "it may regulate at pleasure the modes of proceeding** in
the courts, and all this as to existing obligations, it is difficult to
frame a process of reasoning which would forbid it from so regu-
lating the procedure upon the foreclosure of mortgages as to
define and make more certain the indefinite estate impliedly re-
served by every mortgagor of real property, and called into active
existence only by the foreclosure, and which indefinite estate is
extended by the federal courts of equity for six months in the first
instance, and afterward "once or oftener," in the discretion of the
chancellor, according to the circumstances of the case. Even if
the statute in question should impair the remedy formerly grant-
able upon a foreclosure, yet it ^^^ should not for this reason be
held invalid, for there is no constitutional inhibition against an
impairment of the general remedies for the enforcement of broken
contracts; and each and every of the special examples just cited is
an instance of the impairment or abolition of a remedy allowable
and in force when the obligation was incurred.

Upon the whole, it does not appear that any judgment or de-
cision of the supreme court of the United States requires this
court to hold said chapter 109 unconstitutional, whatever may
have been remarked by judges in delivering their opinions; for
it is quite impossible to harmonize all that they have said,
although the judgments or decisions may not be in conflict.

Digitized by


Dec. 1895.] Beverly v. Barnitz. 275

Even doubt of the constitutionality of said chapter is not sufficient
to warrant its judicial condemnation^ especially by this court. In
such case it seems better to leave such condemnation to the final
arbiter, the supreme court of the Union.

This opinion is of unusual, perhaps unwarrantable, length; but
the question involved is so important, and the respect of the
writer for the deliberate judgment of his predecessor and the as-
sociate justice who concurred with him so profound, that it has
been deemed best to state fully the reasons which lead to a dif-
ferent conclusion from that reached by the former majority of
the court.

The motion for a rehearing will be granted, the judgment of the
district court overruling the motion of plaintiff in error for the
issue of a certificate of sale instead of a deed will be reversed, and
the cause remanded for further proceedings in accordance with
this opinion.

Allen, J., concurring.

APPLICATION.— Sections I, 2, and 26 of chapter 109 of the Laws of
Kansas of 1893, read as follows :

" Section 1. After sale by the sherifl of any real estate on ezecation,
special ezecation, or order of sale, he shall, if the real estate sold by
him is not subject to redemption, at once execute a deed therefor to
the purchaser; but if the same is subject to redemption, he shall exe-
cute to the purchaser a certificate containing a description of the prop-
erty and the amount of money paid by such i)urchaser, together witn
the amount of the costs up to said date, stating that unless redemp-
tion is made within eighteen months thereafter, according to law, that
the purchaser, or his heirs or assigns will be entitled to a deed to the
same ; provided, that any contract in any mortgage or deed of trust
waiving the right of redemption shall be null and void.'*

" Sec. 2. The defendant owner may redeem any real property sold
under execution, special execution, or order of sale at the amount sold
for, together with interest, costs, and taxes, as provided for in this act,
at any time within eighteen months from the day of sale as herein pro-
vided, and shall, in the mean time, be entitled to the possession of the
property; but where the court or judge shall find that the lands and
tenements have been abandoned, or are not occupied in good faith, the

Seriod of redemption for defendant owner shall be six months from the
ate of sale, and all junior liunholders shall be entitled to three months
to redeem after the expiration of said six months. ''

" Sec. 26. The sheriff shall at once make a return of all sales made
under this act to the court ; and the court, if it finds the proceedings
regular and in conformity with law and equity, shall confirm the same,
and direct that the clerk make an entry upon the journal that the court
finds that the sale has in all respects been made in conformity to law,
and order that the sheriff make to the purchaser the certificate of sale or
deed provided for in section 1 of this act.''

In Watkins v. Glenn, 55 Kan. 417, mortgages given in 1886 by Glenn
and his wife were foreclose J and a sale ordered under the new proce-
dure of 1893, there being a. judgment, decree, and order of the trial court
directing the iRsiance of a certificate of purchase as follows;

*' It is hereby lui tlior ordered, adjudged, and decreed that the sherifl

Digitized by


276 Beverly v. Babnits. [EanBtii

making nid sale shall execute and deliver to the pnrchater or purehmaen
of 8aid mortgaged premises, or any part thereof, at said foredosara aalOt
a good and sufficient certificate of purchase for the premises ao ac^d*
upon confirmation of said sale, as provided by the laws of the atate of
KTansas (Laws 1893, c. 109, sees. 1, 2, 26), containing a deecription of
the property purchased, and the amount of monejr paid by eiieh pm*
chaser, together with the amount of costs up to saia date, and atating
that unless redemption is made within eighteen months thereafter,
according to law, the purchaser, or his heirs or his assigns, will be en-
titled to a deed to the same; and that, upon the making and erecntion
of such deed or deeds to such purchaser or purchaaera, sny of the do-
lendants who may be in possession of said mortgaged premisea. or any
person or persons holding possession under through, or by tbem, or
either of them, since the commencement of this action, ahall imme-
diately surrender the possession of said premises to such purchaser or
I>urcha8ers, upon production of such sheriff's deed ; that upon produo-
tion of such snerin's deed to said mortgaged premises, if the parties in
pcmession of the same neglect or refuse to surrender the posaession of
said premises to the purchaser at said sheriff's sale, a writ of assistance
shall be issued by the clerk of the district court, upon the application of
the purchaser at said sheriff's sale, directing tiie sheriff of said county
to take possession of said mortgaged premisea and deliver the same to

" It is hereby further ordered, adjudged, and decreed that from and
after the execution of such deed or deeds, each and all of the defend-
ants herein named shall be forever barred, both at law and in eqaity,
from any right, title, lien, or interest in, to, or against the mcwtgaged
premises hereinbefore described."

This decree was complained of, and an appeal taken. The queoilon
for determination was whether the law of lo93, commonly known as the
'* redemption law," was intended by the legislature to operate retro-
spectively, so as to apply to mortgage contracts existing at and before
its passage. Invol vea m this inquiry was the further question whether,
if the law was intended to apply to such contracts, it violated s ooli oo
10, article 1, of the federal constitution, ordaining that no state shall
pass any law impairing the obligation of contracts. The plaintiff con-
tended that the law of 1893 was not intended by the legislature to applv
to mortga^ contracts entered into prior to its passage, and that, if sach
were the intention of the legislature, the act was unconstitutional as to
such contracts. The defendants admitted that if, under the law of 1803,
there was any material change or impairment of the contract rights se-
cured under the mortgage, however slight, it was nnconstitutioiuiU
But the claim was that the statute acted on the remedy only; that the
plaintiff had, under that act, a substantial remedy to oiforoe the pro-
Tisions of his mortgage, and, therefore, that it was oonstitntioiial and
was intended bv the bgislature to apply to all oontraeta, whether i
before or after its passage.

The court pointed out that the law of 1888 carved out lor the i

gagor, or the owner of the mortgaged property, an estate of ss

months more than was obtainable by him under the former law, with
full right of posaession, and without paying rants, .profits, or taxes.
This was considered to be a carving out and taking away from the estate
originally decreed to be sold another estate limited for that number of
months, and the value of the lands to be sold was diminished by Just
exactly the value of the tenure, rent free, for that time. The court was,
therefore, of opinion, after an elaborate review of the autboritieL that
the obligation of the mortgage contract involved was substsntiallj i
paired hy the act of 1893, if that act operated upon contracts in existen
at the date of its passage, as it injuriously affected the value of the mo
gage aecnrit;; and that the act, so far as it anplied to past contraete,
was unconstitutional and void, as being forbidaen by section 10, article
1, of the constitution of the United States, providing that no atate i ~
paas any law impairing the obligation of contraota.

Digitized by


Dec 1895.1 Bcvbblt v. Babnits. 277

With respect to the TetTOActive o|>enitioii of the atatate ibe eonrt nid i
"Honatate, however positive in iti terms, is to be oonstmed aa de-
igned to infeerlere with eziBting contracts, rights of action, or saita,
tnd w^eaaiW vested righta, nnless the intention that it shonld so operate
iterprwflly declared. And courts will apply new statutes only to Kitura
oaeitiinleaa ttiere la something in the very nature of the oaae, or in the
Imguge o! the new luroTiaion which shows that they were intended to
bafe a Teiioactive operation." Farther, that "the oourta refuse to give
BtatutsB a retroactive construction, onlesa the intention is so clear and
pottUTd as by no poeaibility to admit of any other construction.'' No
nch intention appearing in the language of the law of 1893, the court
held that it did not apply to mortgage contracta existing at and before
iti pusage ; and that, if the lesialature did intend for it to apply to such
ooQtracts, it violated section 10, article 1, of the federal constitution.

It is worthy of mention, in view of the rehearing granted bjf theprind-
ptlcase, that Allen, J., rendered an extended dissenting opinion m that
case, taking the ground " that a statute so eminently fair and reasonable
in its main features and provisions, and which affords in most instances
an even better remedy for creditors than was before afforded, ought to
be upheld ; that the legislature has not, by modifying the remedy, ma-
terially impaired the obligation of contracts; and that the law should
be followed in all cases, whether the obligation was created before or
after its passage."

The case of Watkins v. Glenn, 55 Kan. 417, was followed in Beverly
V. Bamits, 55 Kan. 451, ante, p. 257, the court holding that the law of
18d3 did not apply to mortgages given prior to the i>a88age of that act*
A different conclusion from that reached by the majority of the court
in these two cases was arrived at in the principal case, and the reasons
which lead to it are there fully given.

—CHANGE OF REMEDY— REDEMPTION.— The obligation of a
contract is that which obliges a party to perform his contract, or to re*
pair the injury done by his failure to perform it: Bruce v. Schuyler, 4
Gilm. 221* 46 Am. Dec. 447. It means the right to performance which
the law confers on one party, and the corresponding duty of perform-
ance to which it binds the other: Larrabee v. Talbott, 5 Gill, 426; 46
Am. Dec. 637. The legislature has no oower to pass any law impairing
the obligation of contracts: People v. Common Council, 140 N. Y. 300:
37 Am. St. Rep. 563, and note. It may, however, change the form of
the remedy, or otherwise modif]^ it, as seems fit, provided it does not
deny a remedy, or so embarrass it with conditions and restrictions as
seriously to impair the value of the right : Note to Scobey v. Gibson, 79
Am. Dec. 495. The law existing when a contract is made enters into
and forms part of it; and this is applicable as well to the remedy as to
the right, so that an impairment or taking away of the remedy is an
impairment of the obligation of the contract ; Western etc. Soc. v. Phil*
adelpbia, 31 Fa. St. 175; 72 Am. Dec. 730; Scobey v. Gibson, 17 Ind.
572; 79 Am. Dec. 490; State v. Garew, 13 Rich. 498; 91 Am. Dec. 245.
I^slative authority over remedies may be exercised at pleasure over
past or future contracts (Baugher v. Nelson, 9 Gill, 299; 52 Am. Dec.
694; Coriell v. Ham, 4 G. Greene, 455; 61 Am. Dec. 134; Cook v. Gray,
2 Boost. 455; 81 Am. Dec. 185), if the parties are left a substantial
remedy, according to the course of justice as it existed at the time the
contracts were made: Von Baumbach v. Bade, 9 Wis. 559; 76 Am. Dec.
283. The obligation of a contract is impaired if the means of enforcing
it are withdrawn or materially diminished. It is immaterial whether
this result is accomplished by acting upon the remedy or directly on the
contract itself: State v. Garew, 13 Rich. 498; 91 Am. Deo. 245. When
the remedy is an essential part of the contract, it cannot be changed.
To take away all legal remedies, or so to change and obstruct them as
materially to impair the value and benefit of the contract, is within the

Srohibition of the constitution : Coffman v. Bank of Kentucky. 40 Miss.
d; 90 Am. Dec. 311; Sequestration cases, 80 Tex. 689; 98 Am. Dec

Digitized by


278 Stats v. Missouri Pacific B. R. Co. [Kansas,

404; Fbinney y. Phinney, 81 Me. 460; 10 Am. St. Bap. 266. If a sUt*
ute BO changes the nature and extent of existing remedies as to mater-
ially impair the rights and interests of a party to a contract, this is as
much a violation of the compact as if it absolutely destroyed his rights
and interest, and is nnconstitational and void: Phinney y. Phinney, 81
Me. 450; 10 Am. St. Rep. 266. An act providing for the redemption of
real property sold upon execution, etc.. so far as the same is intended
to apply to sales on judgments rendered upon contracts existing at and
before its pasaajKe, is unconstitutional: Scobey v. Gibson, 17 Ind. 672;
79 Am. Dec. 490. So an act which abrogates a right which a party had,
as mortgagee, at the time the mortgage was given, of a fixed and definite
period for the foreclosure of the mortgagor's equity, and renders that
uncertain which was before certain, is unconstitutional. The right of
redemption and the time for foreclosure cannot be prolonged so as to
materially diminish the security of the mort«me, notwithstanding
he may be allowed possession of the premises: Phinney v. Phinney, 81
Me. 460 ; 10 Am. St. Rep. 266.

TQTIONAL.— €k)urts will uphold statutes, unleM they are so plainly
and palpably in conflict with the constitution as to leave no doubt or
hesitation in the judicial mind as to their invalidity: Burlington etc.
Ry. Go. V. Dey^ 82 Iowa, 312; 31 Am. St. Rep. 477; Mauldin v. City
Ck>ancU, 42 S. O. 293; 46 Am. St. Rep. 723.

State v. Missouri Paoipio Railway Company.

[55 Kamab, 706.]

MISSIONERS.— If a railroad company running an exclusive passen-
ger train, as well as a freight train, each way every day over one of its
branches, finds the revenues from the service insufficient to meet the
expense of maintenance and operation, and withdraws the passenger
train, thereafter running only a dally train each way carrying both
passengers and freight, a court has no authority, by mandamus, to
specifically enforce an order of the board of railroad commissioner
directing the company to restore and operate the passenger train, as
such order is not final or conclusive.

Mandamus by an original proceeding in the supreme court to
compel the Missouri Pacific Railway Company to increase its train
service on the Le Roy and Caney Air Line Road^ a branch road
about fifty-one miles long. It was admitted that, after the with-
drawal of the passenger train, a mixed train, carrying both pas-
sengers and freight, was run over the railroad daily. On January
20, 1890, the board of railroad commissioners of the state ordered
a train for passengers exclusively to be put in operation upon the
road. It was further admitted that the earnings of a passenger
train on the road would probably not be sufficient to meet the
expense incurred in its operation.

P. B. Dawes, attorney general, for the plaintiflt,
Waggener, Ilorton & Orr, for the defendant

Digitized by


Oct. 1895.] State v. Missouri Pacific B. B. Ca 279

^^ JOHNSTON, J. The Le Boy and Caney Vallqr Air line
Bailroad Company constructed a short line of railroad, which
waa leased to the Missouri Pacific Railway Company, and which
afterward formed a branch of the Missouri Pacific system. Prior
to October 20, 1889, the Missouri Pacific Railway Company,
operating the branch road under the lease, ran a daily passenger
train each way over the branch, and in addition thereto a freight
train each way per day. The receipts of revenue from the opera-
tion of the train being insufficient to meet the expense of mainte-
nance and operation, the railway company, on October 20, 1889,
withdrew the passenger train, and thereafter only a daily train,
carrying both passengers and freight, was run oyer the road each
way. On Noyember 1, 1889, a petition was presented to the board
of railroad commissionerB, signed by citizens living along the line
of the railroad, complaining of the withdrawal of the passenger
train from the road and the discontinuance of the operation of the
same, and praying for an order from that board for its restoration
and operation as theretofore. After a hearing, and on January
20, 1890, the board of railroad commissioners rendered a de-
cision in favor of the petitioners, and ordered the railroad company
to restore the passenger train service within thirty days from that

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