Mortgages.—Under the laws of Kansas mortgages may be given on either real or personal property in the possession of the mortgagor, or to which he has the right of possession. They constitute merely a security for debt and pass no title to property, except by foreclosure. Mortgages must be executed, acknowledged and recorded the same as deeds, but in the absence of stipulations to the contrary, the mortgagor of real property may retain the possession thereof. When a deed of real property purports to be an absolute conveyance, but is intended to be defeasible on the performance of certain conditions, such deed is not defeated or affected as against any person other than the grantee or his heirs or devisees, or persons having actual notice, unless an instrument of defeasance, duly executed and acknowledged, is recorded in the office of the register of deeds of the county where the lands lie. Any mortgage of lands, worded in substance as follows: "A. B. mortgages and warrants to C. D. (here describe the premises), to secure the payment of (here insert the sum for which the mortgage is granted, copies of the notes or other evidences of debt, or description thereof, sought to be secured, also the date of payment)," dated and duly signed and acknowledged by the grantor, is deemed to be a good and sufficient mortgage to the grantee, his heirs, assigns, executors and administrator, with warranty from the grantor and his legal representatives of a perfect title in the grantor against all previous incumbrances; and if in the above form the words "and warrants" be omitted, the mortgage is good without warranty.

The recording of the assignment of a mortgage is not deemed of itself notice to a mortgagor, his heirs or personal representatives, so as to invalidate any payment made by them or either of them to the mortgagee. A mortgage given by a purchaser to secure the payment of purchase money has preference over a prior judgment against such purchaser. Any mortgage of real property may be discharged by an entry on the margin of the record thereof, signed by the mortgagee or his duly authorized attorney in fact, assignee of record or personal representative, acknowledging the satisfaction of the mortgage in the presence of the register of deeds or his deputy, who subscribes to the same as a witness. Any mortgage is also discharged upon the record by the register of deeds whenever there is presented to him an instrument executed by the mortgagee or other duly authorized person acknowledging the satisfaction of such mortgage and certified as other instruments affecting real estate. When any mortgage has been paid it is the duty of the mortgagee or his assignee within thirty days after demand—in case demand is made—by the mortgagor, his heirs or assigns, or by anyone acting in their stead, to cause satisfaction of the mortgage to be entered of record without charge; and failure so to do renders the mortgagee liable to the mortgagor in damages to the amount of $100, together with reasonable attorney's fees. It is unlawful for any person or persons to contract for the payment of attorneys' fees in any note, bill of exchange, bond or mortgage, and any such contract or stipulation for the payment of attorneys' fees is null and void.

The legislature of 1872 provided that if the words "appraisement waived," or other words of similar import, be inserted on any deed, bond, mortgage, note, bill or written contract thereafter made, it shall be ordered in any judgment rendered thereon that lands sold to satisfy the same may be sold without appraisement, order of sale being withheld for a period of six months. Under the operation of this statute great abuses crept into the practice. There usually being no competition at sheriff sales, lands mortgaged for one-half their value were not infrequently struck off to the judgment creditor for only a small fraction of the judgment debt—in many instances sufficient only to pay the costs of the court proceedings. Notwithstanding the property was taken from the debtor for the purpose of paying his indebtedness, the debt, or the major portion of it, still remained unsatisfied against him and could be enforced should he then have, or afterward acquire, any real or personal property not exempt from seizure. In his message to the legislature of 1893 Gov. L. D. Lewelling recommended the repeal of the "waiver of appraisement" law, which was accordingly done. By an act passed in 1873 mortgages were exempt from taxes, but this statute was repealed in 1874, and a gold clause in written obligations has also been forbidden.