Lender v. Caldwell , 4 Kan. 339 ( 1868 )

Ay the Court,

Kingman, C. J.

This was an action brought to foreclose a mortgage given to secure a promissory note, of which the following is a copy:

“Fort Scott, Kansas, April 9th, 1867.

“Four months after date, I promise to pay'to the order of John Caldwell, the sum of three hundred and eighty-three and thirty-four one-hundredths dollars, (but if paid at the expiration of three months, the amount to be $350.00,) negotiably and payable without defalcation or discount, with interest on $300.00, at the rate of ten per cent, per annum, from date, (the remainder to bear no interest,) hereby waiving the right of redemption. R. D. Lender.”

The defendants, Lender and Lender, who were husband and wife, made default, and judgment was taken against them for $383.00, as principal, and $15.96 interest thereon, together with $40.00 attorney fee, making.in the aggregate, the sum of $439.30 ; and for a sale of the mortgaged premises, “freed and discharged from any right of redemption under the statute in that behalf provided.” This judgment the plaintiffs in error now seek to reverse.

The defendant in error insists that this judgment cannot be reversed or acted upon in this court, until the questions are presented to the court below, and exceptions taken thereto. This exact question has been before this court, and settled, in the case of Koehler v. Ball (2 Kas., 169), and was there held reviewable, without exceptions to the judgment taken in the court below. The decision in that case meets our entire approbation now; nor is it deemed essential to add to the reasoning on which it is based, except to call attention to § 540 of the code, which specifies certain causes which shall not be ground of error, until the same have been presented and acted upon in the court in which the error was made.

This, by a plain inference, leads to the conclusion that other causes may be ground of error without being first presented to the court where the same were made.

Holding that the case, as presented by the record, is reviewable in this court, we shall proceed to examine the alleged errors.

There was manifest error in allowing an attorney fee of $40. This is expressly prohibited by statute. “No court shall tax over two dollars as attorney’s- fees in any case for foreclosure of any mortgage, or trust deed, or for collection of the saíne.” (Comp. L., 722.) No language of ours can make this, prohibition plainer than the statute itself. A contract between the parties, in derogation of this statute, cannot be enforced. ..

A much graver question that presents itself, is this : Had the court the right to give judgment, cutting off the right of redemption ? The petition shows 'that the plaintiffs in error are husband and wife ; that the mortgage was given by both, to secure a note made by E. D. Lender, only. It does not appear that the mortgage contained any clause of waiver, nor is there any claim of the same, save as appears in the note annexed to the petition.

The plaintiff’s counsel urged, with much ingenuity, that chap. 110, Laws of 1867, is a nullity. We think the intention of the legislature is plainly to be found in the law, and that it was not their purpose to repeal a law in the very act of enacting it. Holding, therefore, the law to be valid, the inquiry presents itself, has the defendant in error placed himself in a position to claim the benefit of the exception to the redemption as therein provided ?

The right of redemption extends to all cases where real estate is sold under execution, order of sale or other final process. But any person may, in the execution of any evidence of indebtedness, or security for any indebtedness, waive the benefits of the provisions of this act.

Now, Mary Lender did not pretend to waive her right to redeem. Whatever interest she had in the mortgaged premises was pledged to the payment of the debt, and that was the extent of her obligation. No other or further right was in any way by her conveyed by the mortgage. What was her estate, does not appear. Whether she held the fee, or it was a homestead, or only her right as wife, in her husband’s estate, is uncertain'; nor is it important. Does the act of 1867 necessarily waive the right of any person other than the one making such waiver ? The language will certainly bear that construction, for it declares that “ such waiver shall be deemed and held to be a full and complete waiver by all persons interested, of all the rights and remedies given by this act or against any such indebtedness.” It is apparent that such a construction would, in many cases, work great hardship, by. making parties incur much greater and graver responsibilities, by the operation of law, than they had intended by their contract.' This case may be one of these. The wife may have signed the mortgage, relying on the right of redemption, and wholly unaware that the same was waived by another instrument to which she was no party, and which, in the mortgage which she signed, was only represented to be a note for the payment of money. If such was the intention of the legislature, it is a trap for the unwary. If such was not the intention, the language used was -very unfelicitous. When the question is presented so as to impose on us the duty, we shall not hesitate to give it a construction. But we do not conceive it necessary in this case, for we do not think the defendant in error has brought himself within the exceptions of the act. “Thereby waiving the right of redemption,” is all the stipulation in the note, while the law provides that the maker of any evidence of indebtedness must waive the provisions of this act in the writing.

It is asked: What other redemption could be meant, save that provided for in the law? We cannot say. The law extends a certain privilege to all the people of the state, but provides that that privilege may be waived in a certain way. The party seeking to deprive another of the privilege conferred by the act, on all persons, must be particular in bringing himself within its provisions. He must show unmistakably, that that object is understood by the parties, and .stipulated for in the bond.

We do not think that the defendant in error has taken the necessary steps to place his claim within the. exceptions, and that the judgment in this respect, is erroneous. The case is therefore sent back to the district court, with directions to modify the judgment, by excluding the attorney’s fee allowed, and not barring the right of redemption.

All the justices concurring.