entire amount of the mortgage debt, but the mortgage involved there was made before the present exemption law was enacted, and hence the case has no application here. The purpose of the redemption law is to prevent the sacrifice of the debtor's land, make it discharge his debt to the extent of its value, and to give other creditors a chance to bid its full value so as to secure something on their claims. Throughout the statute the purpose is evident that a sale of the land shall operate as a complete discharge of the lien on it, and that the redemptioner shall not be required to pay the judgment under which the sale is made. The costs in the main case are a part of that judgment, and the redemptioner is no more required to pay the costs than the other part of the judgment. Frequently a mortgage is given on a small parcel of real estate, as part security on a very large debt, and the costs in a foreclosure proceeding might greatly exceed the value of the mortgaged land. For instance, the costs of the litigation might be $500 and the value of the mortgaged land $200, and, if the theory of appellant obtained, there could be no redemption, unless the $500 were paid, and that would, in effect, defeat the purpose of the Legislature. The statute contemplates that there may be several mortgages, that there may be several and separate sales of the different parcels, and that any distinct parcel may be redeemed by itself. Gen. Stat. 1909, § 6085. In such cases the theory of appellant would be wholly impracticable.

$206.52, which was paid by the appellee, H. | the mortgagor, or his assigns, must pay the F. Kueker, to redeem, was made up of the $200, the amount for which the land was sold, and $1.67, the interest on the amount of the bid; taxes of $2.65, and interest thereon 20 cents, and $2, the cost of redemption. The evidence in the case shows that the legal costs of the foreclosure action, and subsequent costs incident thereto, amount to a total of $33.20, and it is contended that this latter amount should have been collected as a proper part of the amount necessary to redeem, and that, inasmuch as it was not collected, there was no redemption within the legal meaning of that term, and consequently the sheriff's deed is valid and vests title. The single question involved is a determination of the meaning of the word "costs," as used in section 6071, Gen. Stat. 1909. It provides that: "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 provided," etc. In another section the amounts to be paid by redemptioners are referred to, and it is there provided: "The terms of redemption shall be, in all cases, the reimbursement of the amount paid by the then holder of the certificate of purchase added to the amount of his own lien, with interest, together with costs, subject to the exemption contained in the next section." Gen. Stat. 1909, § 6075. Now, it has already been determined that the interest to be paid by the redemptioner is not the interest on the mortgage debt, nor the judgment in the foreclosure, but that he (the redemptioner) "shall pay interest to the purchaser on the purchase price of the land sold." Clark v. Nichols, 79 Kan. 612, 100 Pac. 626. If the word "interest," as used in the provision, is limited to the amount bid, and to the period intervening between the sale and the redemption, it is reasonable to infer that the Legislature, when it used the word "costs" in the same connection, meant such costs as accrued between the sale and the redemption. The redemption, although closely related to the foreclosure action, is in a sense another proceeding into which a new party, the purchaser, has entered. He is not in privity with the mortgagor or the mortgagee, and has no interest in the mortgage debt or to what extent the purchase price of the land will satisfy the lien. The sale of the land under the judgment extinguishes the lien on it, without doubt, and the statute also provides that "the right of redemption shall not be subject to levy or sale on execution." Gen. Stat. 1909, §§ 6087, 6092.

It is suggested that Evans v. Kahr, 60 Kan. 719, 57 Pac. 950, 58 Pac. 467, held to the contrary; that is, that, in order to redeem,

The word "costs," as used in the redemption proceeding, is manifestly the costs of redemption, and not the costs that may have accrued in the foreclosure action. Some language in Clark v. Nichols, supra, is interpreted to give the term a more extended meaning, but the court did not have this question in mind, and did not undertake to define the meaning of the word "costs."

The decision of the trial court was correct, and its judgment is therefore affirmed. All the Justices concurring.

HART v. LIFE & ANNUITY ASS'N. (Supreme Court of Kansas. Jan. 6, 1912.)

(Syllabus by the Court.)

1. INSURANCE (§ 719*)-MUTUAL BENEFIT INSURANCE AMENDMENT OF BY-LAWS.

were

Before the passage of the act relating to fraternal beneficiary societies (Gen. Stat. 1909, art. 11, c. 55), an association of that character in accordance with its by-laws issued a amended two years afterwards providing for beneficiary certificate. The by-laws the issuance of certificates upon a plan less favorable to members and beneficiaries, but making no reference to, or provision for, certificates then outstanding, and the association continued after such amendments, as it had done before, to accept payments upon one of

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

It is admitted that the appellee made all the payments stipulated in the certificate and required by the by-laws in force when it was issued, and he is entitled to relief, unless precluded by the changes in the by-laws, or by some controlling equity or rule of law.

[1] The argument is made that because the original plan was impracticable, and would have resulted in the collapse of the association if it had been continued, the appellee should be bound by a change of policy found to be necessary to maintain the order and to preserve its funds for the uses intended; and that, having taken his certificate subject to such amendments as should thereafter be made in the by-laws, he cannot now claim the benefit of the former by-law. On the other hand, it is insisted that the appellee's claim rests upon a plain contract, and any embarrassment of the order incident to its enforcement is no more a defense than such a consequence would be in the case of any other contract. It is also argued that the condition allowing future amendments is understood in the law to include only such amendments as are reasonable, and that any change which results in the repudiation of a contract, or the destruction of vested rights, is unreasonable, and not binding upon the appellee.

It was held, in Miller v. National Council, 69 Kan. 234, 76 Pac. 830, that, where a certificate issued by such an order was subject to subsequently enacted by-laws, an increase of the rate of assessments, if reasonable and necessary to the accomplishments of the ob

benefits as set out in the answer. The bylaws were again amended in August, 1900, to conform to the statutes of 1898 and 1899, relating to such associations. At the meeting of the supreme council, which is the governing body of the order, in August, 1908, a by-law was adopted placing the certificates issued before the change made in March, 1897, in a separate class, called the "Pyramid Builder class," providing for the services of an actuary to determine the amount contributed by the holders of such certificates, how much had been paid by them for death benefits, and what amount of the reserve fund should equitably belong to the Pyramid Builder class, giving credit for interest accumulations; the amount so determined to be set apart as the Pyramid Builder fund for the payment of death benefits arising out of that class-which should no longer be a charge against the general reserve fund. It was further provided that any holder of a Pyramid Builder's certificate might surrender it and take a certificate in the form now (in 1908) written for $1,000 of the date and at the rate of payment according to the age at which the holder became a member of the Pyramid Builders. Action was taken as provided by this by-law, and the amount of $300 was set aside to the certificate of the appellee in accordance therewith, being the amount so ascertained, for that purpose. The appellee was notified of the action of the association, and it has ever since been ready and willing to issue such a certificate to him. The same terms were offered to all other members of the Pyramid Builders' class.jects of the association was binding upon the The answer does not state how many of these certificate holders accepted the terms offered. The answer further alleged that the amount paid in by the Pyramid Builders was insufficient to pay the insurance stipulated, and to mature the certificates as provided in the by-laws in force when they were issued, and in order that members received afterwards at advanced rates should not be required to pay excessive amounts to raise funds for the payment of benefits provided for in the Pyramid Builders' certificates, and to maintain a just and equitable division of burdens, and that all members should contribute according to benefits to be received, and that the association might fulfill its obligations and preserve an equitable distribution of burdens and benefits, on the advice and orders of the superintendent of insurance and in compliance with the laws of the state, the action above stated relating to the Pyramid Builders' certificates was taken. It is further alleged that the association has no power to issue a certificate such as the appellee demands, which would confer privileges on appellee not enjoyed by other members, or relieve him from payments required of them which would be grossly inequitable. The facts stated in this answer must, in view of the action of the district court, be

holder of the certificate. It was said in the opinion: "The contractual relations between the members and the association should not be measured by the standard, or determined by the legal principles, which are applicable between an ordinary insurance company and the holder of one of its policies."

It might be argued that a reduction in benefits is equivalent to an increase in dues or assessments, and therefore permissible under the decision just cited. In that case it appeared that, after the amendment of the by-law increasing the rate, the association refused to accept payments tendered at the former rate, and entered the member as delinquent. The action was to compel restoration to membership at the old rate. In this case the first change in the by-laws providing for increased rates and impairing benefits was made within two years after the certificate was issued, other changes followed, but the association continued to receive the monthly payments just as provided in the contract for the full 10-year period specified without objection and without making provision for any different benefits than those specified in the certificate. It is true that the by-law under which the certificate had been issued was repealed, and the amended by-law provided for certificates with other

provision was made for the old certificates until the year 1908, two years after the appellee had completed the payments specified in his contract. While recognizing the distinguishing features of a contract of this nature between a fraternal order and its members, pointed out in the Miller Case, it must be held that the association, in order to be relieved from its obligation as written, was at least bound to indicate in some way that members who continued to make payments according to the agreement contained in their certificates would not receive bene fits as stipulated for therein. Otherwise a member might well suppose that the new plan was intended to relate only to certificates thereafter issued. Ordinarily, when a party accepts without condition the consideration agreed upon in a contract, he is presumed to do so with the understanding that he will perform the corresponding obligation on his part. Nothing is perceived in the organization and objects of this association to prevent the operation of this wholesome principle.

Where a by-law had been adopted by a fraternal society reducing the benefits provided for in certificates previously issued, the Court of Appeals of New York held that the action of the society was a repudiation of vested rights, and that an action by the member could be maintained to compel recognition of the contract. Langan v. Supreme Council, Am. L. of H., 174 N. Y. 266, 66 N. E. 932. In a later case, the same court, after reviewing many previous decisions in that state, held that, after a member had made payments for several years as provided in his certificate, vested rights accrued which could not be impaired by a subsequently enacted by-law, and that the member could maintain an action for reinstatement according to the terms of his certificate. Wright v.. Knights of Maccabees, 196 N. Y. 391, 89 N. E. 1078, 31 L. R. A. (N. S.) 423, 134 Am. St. Rep. 838.

In O'Neill v. Supreme Council, Am. L. of Honor, 70 N. J. Law, 410, 57 Atl. 463, 1 Am. & Eng. Ann. Cas. 422, it was held that damages might be recovered by a member of such an order in a situation similar to that of this appellee.

The by-laws adopted after the appellee's certificate had been issued and previous to the action taken in August, 1908, contained no ref

It was held, in Boman v. Bankers' Union, 76 Kan. 198, 91 Pac. 49, 11 L. R. A. (N. S.) 1048, that, although the insured member had agreed to be bound by a subsequently executed by-law, the Union by the acceptance of assessments at the old rate without object-erence to the so-called Pyramid Builders' cering to their sufficiency, had waived the enforcement of a new by-law reducing the indemnity of which he had no notice, and that the beneficiary should recover the indemnity stipulated in the certificate.

In United Workmen v. Haddock, 72 Kan. 35, 82 Pac. 583, it appeared that a by-law subsequently enacted provided that saloon keepers should not be admitted or retained as members of the order. It was held that this by-law, in the absence of a provision to that effect, did not avoid the certificate of a member already engaged in the business when his certificate was issued, and who continued in that occupation in a state where it was not unlawful. It was concluded that the new by-law did not affect, and was not intended to affect, the standing of such a member, and a recovery by the bene ficiary was sustained.

tificates, and the appellee, whose payments were regularly accepted without objection with notice that it was the intention of the or condition, cannot justly be chargeable order to materially reduce or affect the benefits stipulated in his certificate, even if the power to do so should be conceded.

Without further discussion of reasons for

the conclusion, it is sufficient to say that, in
the situation here presented, the association,
by the acceptance of payments as provided
in the certificate for the full time stipulated
therein without objection or condition of
any kind, is estopped from making such re-
duction. As it was said in Wuerfler v. Trus-
tees Grand Grove, W. O. D., 116 Wis. 19, 92
N. W. 433, 96 Am. St. Rep. 940, when a
contract "has been so far executed that to
allow the corporation to repudiate it would
work injustice to the other party thereto,
who has in good faith relied thereon, the
doctrine of estoppel applies and prevents
such repudiation.
And it was

*

In Gaut v. American Legion of Honor, 107 Tenn. 603, 64 S. W. 1070, 55 L. R. A. 465, in an action against a fraternal mutual benevolent society to restore the status of a member whose right to benefits had been re- held that it was beyond the power of the duced by a law enacted after he had made association to reduce the benefits from the payments for several years, the court held stipulated sum to an indefinite amount by that, although the power to amend by-laws a by-law enacted after the member had had been reserved, still the amended by-law paid his dues for many years, although the should not be construed to impair the plain- usual right to make amendments had been tiff's contract, which was beyond the power reserved. Notes discussing this subject will of the order to do, and should be construed be found in 83 Am. St. Rep. 706, 1 Am. & as prospective in its operation. It was con- Eng. Ann. Cas. 427; 10 Am. & Eng. Ann. Cas. ceded that the action of the governing body | 625, and 31 L. R. A. (N. S.) 417. See, also, was taken in good faith, in view of alarming conditions in the order; but it was held that the motive was immaterial.

Wist v. Grand Lodge A. O. U. W., 22 Or. 271, 29 Pac. 610, 29 Am. St. Rep. 603, Smith v. Supreme Lodge K. of P., 83 Mo. App. 512,

and Becker v. Benef. Soc., 144 Pa. 232, 22| Code (Gen. St. 1909, 5676) may be by regAtl. 699, 27 Am. St. Rep. 624.

istered letter mailed to plaintiff's attorney of record, and his signature on the return card acknowledging receipt thereof will be considered prima facie proof of such service.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. 88 747-749; Dec. Dig. & 388.*] 2. JUDGMENT (8 342*)—VACATION-JURISDICTION "MOTION.'

[2] Other grounds of defense urged in the argument have not been overlooked and will be briefly referred to. The defense based upon the delay in bringing action for about four years after the right accrued, invoking the doctrine of laches, cannot be sustained. It must be presumed that some time was The district judge at chambers has power to hear and determine an application under the necessary to negotiate for payment or set-provisions of section 83 of the Civil Code (Gen. tlement, and the suit was commenced in St. 1909, § 5676) to open a judgment and perabout 18 months after the final action of mit the defendant to answer. the supreme council covering certificates of

this class.

[3] The contract is not deemed so unconscionable that equity will not enforce it. It can only be said that the consideration was not adequate for the indemnity promised. That was a matter of estimate involving many contingencies, requiring skill, knowledge, and business sagacity, and the future growth of the order. Insufficiency of rates cannot be ascribed to any wrongful conduct of the insured, or of the association, but to a failure to correctly forecast the future of the business. Besides, it must be remembered that the association itself did not realize the extent of that failure until long afterwards, meanwhile receiving payments according to the original plan, and making no provision for indemnities, otherwise than as originally provided.

[4] It is also urged that the contract cannot be enforced because it was made in violation of a statute prohibiting insurance for a definite sum unless conditional upon the amount recovered from assessments, and from payment of annuities or anything of value to a member himself except for disablement of injury. Gen. Stat. 1901, § 3523. This act was in force when this certificate was issued and was held applicable in some respects to insurance business done by certain mutual benefit associations before the act was passed relating especially to such companies. State ex rel. v. National Association, 35 Kan. 51, 9 Pac. 956; Endowment & Benevolent Association v. State, 35 Kan. 253, 10 Pac. 872. The act, however, did not apply to associations operating under the supervision of a grand or supreme lodge, as this association appeared to be. Gen. Stat. 1901, § 3543.

Cent. Dig. §§ 666-671; Dec. Dig. § 342.*]
[Ed. Note. For other cases, see Judgment,

Appeal from District Court, Clark County.
Action by David Taylor against Charles
P. Woodbury and others. Judgment for de-
fendants, and plaintiff appeals. Affirmed.

F. L. Martin, for appellant. W. W. Harvey, for appellees.

PORTER, J. The judge at chambers in Meade county upon the application of the appellees made an order opening a judgment rendered against them in the district court of Clark county upon service by publication quieting title to certain real estate. This is an appeal from an order of the district court overruling appellant's motion made at the subsequent term of court to set aside the order opening the judgment. The grounds of the motion are: (1) That no proper notice of the application had been served as required by law; (2) that the judge at chambers has no power to open a judgment under section 83 of the Code (Gen. St. 1909, § 5676).

[1] The statute provides that where notice of a motion is required, it must be in writing and served a reasonable time before the hearing. Civ. Code, § 558 (Gen. St. 1909, § 6153). It appears that the notice was served upon the attorney of record for appellant by registered mail. It necessarily must have been served by some person in the postal service. That person made no return of the service, but a return was not necessary since appellant's attorney signed the return card and acknowledged the receipt of the letter which, it is conceded, contained the notice. The acknowledgment on the back of a summons is equivalent to service. Civ. Code, § 68 (Gen. St. 1909, § 5661). We think that service of a motion made in this way is not objectionThe judgment providing for specific per-able and ought to be upheld; it is a substanformance of the contract is in accordance tial compliance with all the requirements of with these views, and is affirmed. All the the Code and furnishes its own proof of the Justices concurring.

TAYLOR v. WOODBURY et al. (Supreme Court of Kansas. Jan. 6, 1912.)

(Syllabus by the Court.)

1. JUDGMENT (§ 388*)-VACATION-NOTICE OF APPLICATION-SERVICE.

Service of a notice of an application to open a judgment under section 83 of the Civil

fact and character of the service.

[2] Has the judge at chambers power to grant the application? It is true, the district judge at chambers can exercise only such powers as are conferred by law. The application to open a judgment rendered upon service by publication is nothing more than a motion. The Code defines a motion as an application for an order "addressed to the court or a judge in vacation." Civ. Code, § 556 (Gen.