Olson v. Gowan-Lenning Brown Co.

Bronson, J. Stalemenl. — The defendant has appealed from an order overruling a demurrer to the complaint. In November, 1914, the plaintiff gave to the defendant a mortgage upon farm lands in Eddy and Griggs counties. On July 8, 1917, plaintiff entered the service of the Bnited States and served thereafter as a private soldier until May 22, 1919, when he was honorably discharged. On December 1st, 1917, pursuant to proceedings had to foreclose the mortgage by advertisement, the lands were sold and a sheriff’s certificate issued to the defendant. On December 6, 1918, a sheriff’s deed was issued. In October, 1920, the plaintiff, relying upon the Federal and State Moratorium Acts, instituted this action to set aside the sheriff’s deed, to compel the defendant to account for the rents and profits received by the defendant for the years 1918 and 1919, and to pay the plaintiff for the rents and profits received in the year 1920. On January 29, 1918, the State Moratorium Act (chap. 10, Spec. Sess. Laws 1918) was adopted. On March 8, 1918, the Federal Soldiers and Sailors Civil Belief Act was enacted. Decision. — We are of the opinion that the Federal act, upon the alleged facts, is not applicable. The plaintiff relies upon that portion of the act which provides that no sale under the power of sale shall be valid if made during the period of military service or within three months thereafter, unless upon an order of sale previously granted by the court and a return thereto made and approved hy the court. See. 302. Plaintiff also cites § 8087, N. D. Comp. Laws 1913, which pro [547] vides that if any mortgaged premises are not redeemed, it shall be the duty of the officer to complete the sale by executing a deed of the premises so sold to the purchaser. He contends that the issuance of such deed is a part of the sale. The foreclosure sale in the instant case was had before the Federal act was enacted. No question is therefore injected of the necessity of foreclosing by action under the terms of the Federal act. Such sale operated to pass to the purchaser the title to the premises subject only to the equity of redemption within one year. At the expiration of this equity of redemption the full beneficial title of the mortgagor passed to the purchaser. The execution of the sheriff’s deed is only the ministerial act required to complete the formal transfer of the legal title when the equity of redemption had expired. State ex rel. Forest Lake State Bank v. Herman, 36 N. D. 177, 161 N. W. 1017. Neither the execution nor the nonexecution of this sheriff’s deed serves to diminish or extend the equity of redemption. If, for purposes of argument only, it be assumed that the equity of redemption was suspended, during the period of plaintiff’s military service and for three months thereafter, it fully appears, nevertheless, that his equity of redemption thereafter fully expired before the institution of the present action, and without any alleged offer or tender made to redeem. Has the plaintiff brought himself within the terms of the State Moratorium Act ? This court has heretofore given a broad and liberal construction to the State Moratorium Act to accomplish the beneficent purposes for which it was enacted. Thress v. Zemple, 42 N. D. 599, 9 A.L.R. 1, 174 N. W. 85; Strand v. Larson, 45 N. D. 7, 176 N. W. 736. It is to be noted again that the foreclosure sale was had prior to the enactment of the state act. It is not contended that the act affects the validity of such sale held in December, 1917. The point of attack is that the sheriff’s deed, issued in December, 1918, and while the plaintiff was still in service, was directly within the terms of the act and, therefore, is void. As heretofore stated, the sheriff’s deed simply evidences the formal transfer of the naked legal title and the ministerial act of the officer concerned. Accordingly, resort must be made to the position and contention that the state act operates to suspend the equity of redemption. [548] If it be conceded again, for purposes of argument only, that tbe equity of redemption was so suspended, the question then arises, During what period of time was it so suspended ? The state act provides that no proceeding by action or otherwise shall be had or taken in this state for the foreclosure of a mortgage against any person in the active military service of the United States during the time the United States is engaged in the present war and for án additional period of one year, and, during such time, no further proceeding shall be taken in any action or proceeding that is pending at the time of the taking effect of the act in which such person is a party over his objection. Spec. Sess. Laws 1918, chap. 10. If, within the contemplation of the act, the United States is still engaged in the present war, then, under the assumption that the equity of redemption is suspended by the act, such equity of redemption is still suspended. If, however, the engagement of the United States in the war with Germany ended upon the cessation of actual war, then the equity of redemption remained suspended, under the assumption made, only until one year after Armistice day, November 11, 1918. Upon the former construction, the plaintiff would still have a right of redemption. Under the latter construction, this right of redemption expired in September, 1920. In placing a construction upon the statute, aid can be afforded practically only through the consideration of the act itself and the circumstances existing when it was enacted. In this regard the Federal act affords no aid: It provides that the act shall remain in force until the termination of the war and for six months thereafter. It extends its privileges to^ soldiers during their term of military service and for certain limited periods after its termination. It specifically provides that the termination of the present war means by the treaty of peace as proclaimed by the President. Generally speaking a Moratorium Act, favoring persons engaged in the military service, which operates to stay actions or proceedings against such person may be upheld when the period prescribed is for a reasonable time. See note in 9 A.L.R. 11; Breitenbach v. Bush, 44 Pa. 313, 84 Am. Dec. 442. This statute was enacted at a time when the Federal Selective Service Laws were in force and when the men of this state in various walks of life had been, or were being, called into actual service in the defense of our country. [549] Under the Federal act (May 18, 191Y) the service of these men, whether selected by draft or under enlistment, was for the period of the war, unless sooner terminated by discharge or otherwise. 9 Fed. Stat. Anno. 2d ed. 1163. The state act was created and enacted as emergency legislation. Throughout, it contemplates the extension of its benefits to large numbers of our citizens who recently theretofore had been, or were being, called into service under an emergency situation and who necessarily had to leave behind, without personal protection, their civil rights while they were away in active military service. This court has heretofore held, in Strand v. Larson, supra, that a person so called into active military service, was entitled even after his discharge to the benefits of the act for the period therein proscribed. This gave recognition to an opportunity for, and a period of rehabilitation, namely, an additional period of one year after the engagement of our government in the present war. In the light of present circumstances and present knowledge it would appear to be a strange and unwarranted construction to extend this period of rehabilitation after return to civil life for an indefinite period of time dependent upon when the Federal government legally, although not actually, terminates the war. The act, as heretofore stated, was emergency legislation. It was put into operation under emergency conditions and t,o provide protection during an emergency. In fact the actual engagement of the United States in the present war ceased upon Armistice day, November 11, 1918. The purposes of the act are fully subserved and the emergency condition contemplated fully covered, by recognizing the extension of its benefits during the time that our government was actually engaged in the present war and for the additional period therein prescribed. Any other construction would serve to extend the benefits of the act beyond its contemplated purposes and would serve to jeopardise its validity. See chap. 5, Subd. 6, Spec. Sess. 1918; chap. 138, Laws 1921. It is therefore our opinion that the act contemplates and was intended to contemplate the time when the United States was actually engaged in the war, and for an additional period of one year thereafter. The order of the trial court is reversed. [550] Birdzell, J., concurs.