Watkins v. Glenn

• Citation: 55 Kan. 417,40 P. 316
• Parties: J. B. WATKINS v. MARSHALL H. GLENN. et al
• Decision Date: 30 April 1895
• Court: Kansas Supreme Court

40 P. 316

55 Kan. 417

J. B. WATKINS v. MARSHALL H. GLENN. et al

Supreme Court of Kansas

April 30, 1895

Error from Harper District Court.

ON March 1, 1886, Marshall H. Glenn and Lillie O. 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 following-described real estate: The south half of the northwest quarter of section 12, township 32, range 7, west of the sixth principal meridian, in Harper county, in this state. The note and 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 plaintiff's petition in the above-entitled cause filed, deny each and every allegation therein contained.

"2. 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, 1888.

"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 7 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 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."

Trial had before the court without a jury on the 29th of January, 1894. The court found that the allegations 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 court further found that there was due to the defendant, 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 judgments 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 here by further ordered, adjudged and decreed, that the sheriff making said sale shall execute and deliver to the purchaser or purchasers of said mortgaged premises, or any part thereof, at said foreclosure sale, a good and sufficient certificate of purchase for the premises so sold, upon the confirmation of said sale, as provided by the laws of the state of Kansas, (Laws of 1893, ch. 109, §§ 1, 2, 26,) containing a description of the property purchased, and the amount of money paid by each purchaser, together with the amount of costs up to said date, and stating that, unless redemption is made within 18 months thereafter according to law, the purchaser, or his heirs or his assigns, will be entitled to a deed to the same; and that, upon the making and execution of such deed or deeds to such purchaser or purchasers, any of the defendants who may be in possession of said mortgaged premises, or any person or persons holding possession under, through or by them, or either of them, since the commencement of this action, shall immediately surrender the possession of said premises to such purchaser or purchasers, upon production of such sheriff's deed; that upon production of such sheriff's deed to said mortgaged premises, if the parties in possession of the same neglect, or refuse to surrender the possession 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 the sheriff of said county to take possession of said mortgaged premises, and deliver the same to said purchaser.

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

Sections 1, 2 and 26 of said chapter 109 read as follows:

"SECTION 1. After sale by the sheriff of any real estate on execution, special execution, 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 execute to the purchaser a certificate containing a description of the property and the amount of money paid by such purchaser, together with the amount of the costs up to said date, stating that unless redemption is made within 18 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 18 months from the day of sale as herein provided, and shall in the meantime 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 period of redemption for defendant owner shall be six months from the date of sale, and all junior lien-holders 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."

To the judgment, decree and order of the court directing the issuance of a certificate of purchase, under chapter 109, Laws of 1893, J. B. Watkins, the plaintiff below, excepted and brings the case here for review and reversal.

Judgment reversed and cause remanded.

W. J. Patterson, for plaintiff in error:

The district court of Harper county erred in ordering the sheriff of said county to execute and deliver to the purchaser a certificate of purchase under the act of the legislature (Laws of 1893, ch. 109, § 26,) because said law, if held by the court to apply to contracts entered into prior to its passage, violates article 1, § 10 of the constitution of the United States, which provides that "no state shall . . . pass any . . . law impairing the obligation of contracts." This act of the legislature, if held...