Of course, enforcement of their rights, but these are sub- the rendition of the judgment. ject to change at any time, whether as to the mortgagor might redeem at any time beexisting or future contracts. If, by the last fore actual sale, by paying his debt, interest, clause of the proposition, it is meant that any and costs. By the act of 1893 the statutes resubstantial impairment of the contract is quiring appraisement were repealed, so that forbidden, certainly there can be no objection an order of sale may be issued at any time to it; but the value of a contract may be in- after the entry of judgment, and the land, cidentally lessened by state legislation with-after due notice, sold for whatever price it out impairing its obligation at all, as de- will bring. Upon confirmation, which may cided in many cases by the supreme Federal be had at any time after the sale when the tribunal. In Seibert v. United States, 122 U. district court is in session in the county, the S. 284, 30 L. ed. 1161, the syllabus in Ed-creditor is entitled to the proceeds of the sale, wards v. Kearzey, supra, is quoted approving-up to the amount of his judgment, interest. ly, but its principle was in no wise necessary and costs. Under our practice, a personal to a decision of the case. By the act of March judgment is rendered in the first instance for 23, 1868, the legislature of Missouri author- the full amount due, and if the proceeds of ized the issue of bonds in payment of sub- the sale are insufficient to pay the whole scriptions to the stock of railroad companies, judgment debt, interest, and costs, they are and therein stipulated that the county court simply credited thereon, so that it is unnecesshould from time to time levy and cause to sary to obtain a judgment over, as in the be collected, in the same manner as county Federal courts of equity, and a general executaxes, a special tax, in order to pay the in- tion may issue for the balance due. The act terest and principal of any such bond, and it of 1893 does not operate upon the rights of the was held by the supreme court that it was a mortgagee until his claim as such has been material part of this statutory contract that extinguished, either wholly, or to the full such creditor should always have the right to extent of the proceeds of the sale of the morta special tax, to be levied and collected in gaged property. The mortgagor, it is true, the same manner as county taxes, and that a may redeem the land within a certain time subsequent act of the legislature which took by payment of the sale price and interest away this right, and gave in return no equiv. thereon, but this is a matter wholly between alent means of payment, was an impairment him and the purchaser. If the mortgagee or of the contract. There are other cases of like judgment creditor has deemed it best to becharacter, and certainly a creditor who takes come the purchaser, and thus voluntarily the bond of a municipality upon the assurance change his relation, it is difficult to see how of a statute which authorizes its issue, and he has any just cause of complaint. By the provides the means for its payment, has a mortgage contract the real estate was pledged right to rely upon such statute as implicitly for the payment of the debt, subject to as upon the stipulation of the terms of pay- the equity of redemption. The state, by its ment in a private contract; but a bondholder proper officer, has at his instance sold the would have no just cause to complain if the property for its payment; and after he gets the number of the terms of court should be re-proceeds of the sale he has no further claim duced, or the obtaining of an order of attachment rendered more difficult, or the law as to the appointment of receivers modified. Such matters do not enter into the contemplation of the parties in making a contract, so as to forbid a legislative change, nor follow the contract into other jurisdictions. The correct doctrine is concisely stated in 3 Am. & Eng. Enc. Law, p. 753, as follows: "The remedy provided by law for the enforcement of a contract is no part of its obligation, and whatever pertains merely to the remedy may be changed, modified, or abrogated by the legislature, in its discretion and to any extent, provided a substantive remedy be still left to the creditor, and such changes may consti-gage may be drawn; it creates only a lien tutionally apply to existing contracts. But if the parties to a contract include in it, in express terms, the remedy to be sought upon its breach, or the means to be used for securing its performance, subsequent legislation changing the remedial process they have agreed upon is, as to them, inoperative." This brings us to a consideration of the change of our law as to the redemption of real estate. Prior to 1893, lands could not be sold, for less than two thirds of their appraised value, unless appraisement was waived in the mortgage or the bond or promissory 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 upon that property, although he may proceed by general execution to obtain any balance due by seizure and sale of other property. "In this state, the common-law attributes of mortgages have been by statute wholly set aside, and the ancient theories demolished. The mortgagee has a mere security, creating a lienupon the property, but vesting notitle, and giving no right of possession whatever, either before or after breach. The statute confines the remedy of the mortgagee to an ordinary action and sale of the mortgaged premises." Waterson v. Deroe, 18 Kan. 223, 232, 233. “In this state a real-estate mortgage conveys no estate or title, in whatever form the mort upon the mortgaged property; and such lien 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 or profits thereof." Seckler v. Delfs, 25 Kan. 159, 165. the Kansas short form of mortgage, authorized by statute (Gen. Stat. 1889, 3886), 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, the cunning, and the avarice of man. All such clauses are treated by the courts as if they were not. In Clark v. Reyburn, 75 U. S. 8 Wall. 318, 19 L. ed. 354, a decree of strict foreclosure was entered on a Kansas mortgage in the United States circuit court. There was no act of Congress nor state statute nor rule of court forbidding this practice, nor purporting to give any time to redeem after foreclosure; yet the supreme court reversed the decree, holding that as the 90th equity rule directs that the practice of the circuit courts shall be regulated, where no rule is applicable, by that of the high court of chan The act of 1893 does not purport to repeal or modify section 254 of the Code of Civil Procedure (Gen. Stat. 1889, 4349), which authorizes the appointment of a receiver in a foreclosure case where it appears that the mortgaged property is in danger of being lost, removed, or materially injured," or when "the condition of the mortgage has not been performed," and "the property is probably insufficient to discharge the mortgage debt." In such cases a receiver may be appointed at any time after the action is commenced, and the receivership may continue until the sale of the land by the sheriff, when the mort-cery in England, so far as it can be applied gagee's claim upon it is satisfied and extin- consistently with the local circumstances and guished, and, as a creditor, he has no further conveniences of the district where the court concern with it. The act of 1893 does not be is held, and as, by the English practice, a come operative until after the sale, and it period of at least six months was allowed for matters not to the former creditor how the redemption, the decree, cutting off the mort-land is occupied during the period of redemp-gager without time to redeem, was erroneous. tion. Where appraisement is waived, as in Mr. Justice Swayne, delivering the opinion of this case, the mortgage creditor may now the court, said (pp. 321, 322, L. ed. 356): "The have a sale, on request, six months sooner equity of redemption is a distinct estate from than formerly. In certain contingencies the that which is vested in the mortgagee before purchaser may obtain a deed as soon after or after condition broken. It is descendible, judgment as under the old law; in others, he devisable, and alienable, like other interests may be compelled to wait at most a year in real property. . . As between the longer, but the redemptioner must pay in-parties to the mortgage the law protects it terest in the meantime, which is generally with jealous vigilance. It not only applies accounted an equivalent for use and occupa the maxim, 'Once a mortgage always a morttion. gage,' but any limitation of the right to reIt may be said, however, that the creditor deem, as to time or persons, by a stipulation is prejudicially affected by this change of the entered into when the mortgage is executed, law, because purchasers may be unwilling or afterwards, is held to be oppressive, conto pay as high a price as before. But in this trary to public policy, and void. By the country land is not esteemed as in the old common law, when the condition of the mortworld. Here it is largely a subject of invest-gage was broken, the estate of the mortgagee ment and speculation, and in many cases the purchaser would prefer a return of his money, with interest, to a deed for the land. A court could hardly say judicially that land would sell for less by reason of this change of the redemption law. Such considerations, like the lowering of the rate of interest to be paid by the redemptioner, are "too remote, as held in Connecticut Mut L. Ins. Co. v. Cushman, supra, "to justify the conclusion, as matter of law, that such legislation affected the value of the mortgage contract." A realestate mortgage is not what it purports to be on its face anywhere. In Kansas it has been shorn of all its common-law incidents, as we have seen, and this is true in most of the other states. It may be stipulated in the mortgage that upon default of payment of principal or interest the mortgagee shall be entitled to possession of the mortgaged premises. It is vain. It 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. It may be provided that for any particular delinquency a receiver may be appointed. It is a waste of words. The mortgagor may even be driven by his necessities to bargain away in the mortgage his equity of redemption. Equity will treat it as void. For any such purpose, became indefeasible. At an early period tion of and in said mortgaged premises.' | lightened system of jurisprudence, that seeks We have been able to find no Eng- not the financial ruin of the mortgagor, in the lish case where, in the absence of fraud, a application of his property to the satisfaction time for redemption was not allowed by the of his debt. From causes upon which all do decree. The subject was examined by Chan- not agree, and that we need not discuss, the cellor Kent, with his accustomed fullness of burden of a private debt has been enormously research. He came to the conclusion that the increased of late years. Farms valued five time was in the discretion of the chancellor, years ago both by borrower and lender at and to be regulated by the circumstances of $3,000 or $4,000, and mortgaged for $1,000, the particular case, but he nowhere intimates are now knocked down under the sheriff's that such an allowance could be entirely hammer for less than the mortgage debt, the withheld." accumulations of a lifetime being often swept away by the shrinkage, and this through no fault of the mortgagor. Now, may not a state legislature take cognizance of such a condition of affairs, and prescribe a rule, for application in its courts, regulating the equity of redemption, and even extending it beyond the time formerly allowed? In other words, why may it not, in a time of general depression, reasonably extend the indefinite estate impliedly reserved by the mortgagor, as the Federal courts of equity do in particu The equity of redemption being a creature of the courts of chancery, and impliedly reserved by the mortgagor, notwithstanding any language incorporated into the mortgage, it results that the state legislatures may deal with and regulate it upon equitable principles, and may abate the rigors of the common-law foreclosure in any reasonable way, having due regard to the obligations of the mortgage contract as interpreted by courts of equity. The Federal courts of equity first allow six months from the decree of fore-lar cases, beyond the six months allowed by closure in which to redeem, as an incident of the general practice? This reserved estate the remedy; and this may be extended once belongs to the mortgagor, and because of its or oftener, at the discretion of the chancel- indefinite duration the legislature ought to lor, according to the circumstances of the have power to regulate it, within reasonable case. In some cases-notably, in foreclos- bounds, so as to protect the interests and ures upon railways and other extensive prop-equities of both debtor and creditor. erties the time is extended for years, the Great reliance has been placed by counsel subject-matter of the litigation being held in for defendant in error upon the authority the meantime by receivers appointed upon the of Bronson v. Kinzie, 42 Ü. S. 1 How. 311, same equitable principles as prescribed by 11 L. ed. 143; and it would be conclusive our statute herein before cited. Again, such against our position, if a Kansas mortgage of courts refuse to confirm master's sales where 1885 is to be governed by the rules applicable the purchase price is grossly inadequate, and to the Illinois instrument, of date July 13, in cases of peculiar hardship they deny judg. 1838, which was enforced in that case. There, ment over, according to the 92d equity rule, in order to secure the payment of a certain for any balance due after the application of bond of $4,000, Kinzie conveyed to Bronson, the proceeds of the mortgaged property in "in fee simple, by way of mortgage, one unsatisfaction of the debt. It is one of the ad-divided half part of certain houses and lots vantages of courts of equity that their rem- in the town of Chicago, with the usual proedies are more flexible than those afforded by viso that the deed should be null and void if the common law. In this state, however, the the said principal and interest were duly district courts have full equity powers, and paid; and Kinzie, among other things, covyet foreclosures are governed by rules almost enanted that if default should be made in the inflexible. Personal judgments are rendered payment of the principal or interest, or any for the full amount due, and the proceeds of part thereof, it should be lawful for Bronson the mortgaged property are applied only as a or his representatives to enter upon and sell credit thereon, so that execution may issue the mortgaged premises at public auction, at once for any balance remaining; and, so and, as attorney of Kinzie and wife, to con. far as the reports of this court show, no sher- vey the same to the purchaser, and, out of iff's sale has ever been set aside on account the moneys arising from such sale, to retain of inadequacy of price alone, if, indeed, such the amount that might then be due him on a thing can be done. Capital Bank v. Hun- the aforesaid bond, with the costs and charges toon, 35 Kan. 578, 591, and cases cited. In of sale, rendering the overplus, if any, to the case cited above from 75 U. S. 8 Wall. Kinzie. In the opinion the court says (p. 318, 19 L. ed. 354, we have seen that the 315, L. ed. 144): “As concerns the obligaequity of redemption is regarded by the Su- tions of the contract upon which this conpreme Court of the Union as an estate distinct troversy has arisen, they depend upon the from the right vested in the mortgagee, and laws of Illinois as they stood at the time the this estate is indefinite in its duration. In mortgage deed was executed. accordance with the English rule, the time (p. 318, L. ed. 146): According to the given in the first instance is at least six long-settled rules of law and equity in all months, and then it may be extended "once of the states whose jurisprudence has been or oftener, at the discretion of the chancel- modeled upon the principles of the common lor." And in granting these extensions, ac-law, the legal title to the premises in quescording to the circumstances of each case, tion vested in the complainant, upon the the Federal courts of equity have not the re- failure of the mortgagor to comply with the motest idea of "impairing the obligation of conditions contained in the proviso, and at contracts." They are endeavoring only to law, he had a right to sue for and recover enforce them in a manner dictated by an en- the land. And (page 319, L. ed. 66 And 146): "When this contract was made, no statute had been passed by the state changing the rules of law or equity in relation to a contract of this kind. None such, at least, has been brought to the notice of the court; and it must therefore be governed, 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, without 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 mortgagee on default of payment; and this no Kansas mortgage has ever done, whatever may have been its stipulations. It therefore 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 devested 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 indistinguishable, and in such case it is en tirely 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 jurisprudence and practice, entirely aside from anything contained in the contract, never constitute any part of its obligation, and may be changed from time to time; and this is the doctrine of Bronson v. Kinzie, as quoted in the first reference to the case in this opinion. The case of Howard v. Bugbee, 65 U. S. 24 How. 461, 16 L. ed. 753, although from Alabama, is in no way distinguishable from Bronson v. Kinzie, as will appear from the briefs and the opinion; and the authority of the earlier case was, of course, followed. In Alabama, as well as in Illinois, the realestate mortgage was clothed with its com mon-law attributes. Paulling v. Barron, 32 Ala. 9, 11; 1 Jones, Mortg. 18. Bronson v. Kinzie was also decided in part upon a subsequent law requiring an appraisement, and prohibiting a sale for less than two thirds of the appraised value, and there are other cases of like nature; but as appraisement laws, and those regulating the equity of redemption, depend upon different principles, it is unnecessary to occupy time now with their consideration. It can be no objection to the statute under review that redemption comes after, and not before, the sale, for this is a feature favorable to the creditor. He may now have the sale advertised as soon as his decree of foreclosure is entered, and he is entitled to the proceeds whenever the sale is confirmed, and this may be at any time afterwards 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, as to the mortgaged property, is to sell it and apply the proceeds 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 this respect as those of any other state in the Union, and, as we have seen, more favorable than the remedies administered by the Federal courts under their practice. Section 24 of the redemption act in question has been the subject of much criticism. It relates to the appointment of a receiver, under certain circumstances, after the sale, and the application 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 show that any receiver was ever appointed or applied for under that section, nor under ¶ 4349, Gen. Stat. 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. Butler, 52 Kan. 424, 22 L. R. A. 465, where the decree of foreclosure had been entered, and the rights of the parties fixed thereby, prior to the passage of said chapter 109, Acts 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 exemptions 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 afterwards 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 judg ments; if it may require the holder of a taxsale 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 devest 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 regulating the procedure upon the foreclosure of mortgages as to define and make more certain the indefinite estate impliedly reserved 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 afterwards, "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 grantable 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 decision 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. Even doubt of the constitutionality of said chapter is not suf. ficient 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 associate justice who concurred with him so profound, that it has been deemed best to state fully the reasons which lead to a different 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. Johnston, J., dissenting: mortgage were subsequently assigned and transferred to J. B. Watkins, the plaintiff. This action was commenced in the district court of Harper county, on the 14th of April, 1891, to foreclose and sell the mortgaged premises to pay the indebtedness secured thereby. On May 13, 1891, the defendants Glenn and wife filed the following amended answer. omitting caption: (1) The defendants, Marshall H. Glenn and Lillie O. Glenn, for their answer to plaintiffs' petition in the above entitled cause filed, deny each and every allegation therein contained. These defendants, for a further answer to said petition, say and allege that the said note and bond sued upon in this action have been fully paid by these defendants long prior to the commencement of this action, and on or about the 1st day of March, 18. (3) These defendants further aver that said note, if any there be, was given for a loan of money, and that the interest on said loan was to be at the rate of 10 per cent; and the amount in the bond was to bear the rate of per cent interest, and 3 per cent of said interest is represented by the mortgage and note, held by the defendant Thomas S. Moffett, and the interest on said bond is therefore usurious and illegal. (4) These defendants further aver that said bond or note is non-negotiable, and all the facts above set forth were and always have been well known to the plaintiff herein. (5) These defendants further allege that the plaintiff, J. B. Watkins, is a member of the American Banking Association, a combination and association having for its object and purpose the controlling, regulating, and fixing the amount of money in actual circulation, and for the controlling, regulating, and fixing the rate of interest, and the rate of use and forbearance of money charged and to be charged by its members of their customers and borrowers. That said association is illegal, unlawful, and contrary to public policy. That by reason of the existence of said combination and its actions as aforesaid, in the furtherance of the object of said combination, these defendants have been injured and damaged, and their ability to pay and meet their contracts has been controlled. Wherefore these defendants demand judgment against the plaintiff for costs of suit, and for such other and further relief as equity may require." Thomas S. Moffett, one of the defendants, filed an answer and cross-petition to recover $337.50 of This case, together with Watkins v. Glenn, 55 Kan. 417, was submitted upon ample briefs and oral argument at the March, 1895, session, and after a full consideration a decision was reached in April following, when it was determined by a majority of the court that the redemption law has no retroactive operation and therefore does not apply to mortgage contracts existing at and before its passage, and that, if the legislature intended the act to apply to such contracts, it would violate section 10 of article 1 of the Federal Constitution. The judgment of the court was pronounced by Chief Justice Horton, and I am still satisfied with the views then expressed. The opinion delivered by Chief Justice Horton embodies a careful review of the authorities, and such a clear and forcible exposition of the law, that I am satisfied no additional force could be added by any fur. ther comments that I might make. I refer to that opinion for the grounds of my dissent to the allowance of a rehearing and to the judg-court further found that there was due to the dement of reversal.* Glenn and wife, and also to foreclose a mortgage upon the premises described in plaintiff's petition, executed on the 1st of March, 1886, by them to secure a note of $225 with interest. Glenn and wife filed an answer to this cross-petition. The mortgage executed and delivered to the home contained the following provision: "It is further agreed that in case of default in the payment of said bond. or any part thereof, or any of the sums of money to become due herein specified, according to the tenor and effect of said bond, or in the case of the breach by the said party of the first part of any of the covenants or agreements herein mentioned by said first party to be performed, then, and in that case, the bond secured hereby shall bear interest at the rate of 12 per cent per annum from date, and this conveyance shall become absolute, and the party of the second part be at once entitled to the possession of the said above-described premises, and to have and receive all the rents and profits thereof." *The opinion referred to was as follows: HORTON, Ch. J.: 29th of January, 1894. The court found that the alTrial had before the court without a jury, on the legations of the plaintiff's petition were true, and that there was due the plaintiff, as therein alleged, from the defendants Marshall H. Glenn and Lillie O. Glenn, $1,500 as principal, and $952.55, as interest, aggregating $2,452.55, and that the mortgage in plaintiff's petition set forth was and is a first and prior lien on the premises described therein. The fendant T. S. Moffett, from Glenn and wife $438, with interest, and that the mortgage set out in his petition was a second lien upon the premises. Subsequently the court rendered personal judgO.ments upon its findings against Glenn and wife, and for a foreclosure of the mortgaged premises, and a sale thereof to pay the judgment, interest, and costs. The judgment or decree of foreclosure provided: "It is hereby further ordered, adjudged, and decreed that the sheriff making said sale shall execute and gaged premises, or any part thereof, at said foreclosure sale, a good and sufficient certificate of purchase for the premises so sold, upon the confirmaItion of said sale, as provided by the laws of the On March 1, 1886, Marshall H. Glenn and Lillie Glenn, his wife executed and delivered their promissory note for $1,500 to the trustees of the Home for Friendless and Destitute Children, in the city of Wilmington, and at the same time, to secure the payment of the note, they executed and delivered their mortgage deed to the home upon the follow-deliver to the purchaser or purchasers of said morting described real estate: "The south half of the northwest quarter of section twelve (12), township thirty-two (32), range seven (7) west, of the 6th P. M. in Harper county, in this state." The note and |