Hoffman v. Charlestown Five Cents Sav. Bank

• Decision Date: 26 November 1918
• Citation: 121 N.E. 15,231 Mass. 324
• Parties: HOFFMAN v. CHARLESTOWN FIVE CENTS SAV. BANK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

231 Mass. 324

121 N.E. 15

HOFFMAN

v.CHARLESTOWN FIVE CENTS SAV. BANK.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 26, 1918.

Appeal from Superior Court, Suffolk County.

Bill in equity by Morris Hoffman against the Charlestown Five Cent Savings Bank. From a decree dismissing the bill, complainant appeals. Decree reversed, and decree entered enjoining defendant.

Wm. C. Matthews and Jordan P. Williams, both of Boston, for appellant.

Edward W. Bancroft, of Boston, for appellee.

LORING, J.

This is a bill brought in behalf of an officer in the military service of the United States outside the commonwealth to get relief from the foreclosure of a mortgage made in violation of clause 3 of section 302 of chapter 20 of the act of Congress dated March 8, 1918 (40 Stat. 444), entitled the ‘Soldiers' and Sailors' Civil Relief Act.’

The case was sent to a master. From his report it appears that, ‘expecting to be called for service in the army,’ the plaintiff by the foreclosure of a third mortgage conveyed the land and buildings here in question to his mother subject to a first mortgage to the defendant as well as to a second mortgage to a third person. Thereafter it was agreed between the plaintiff and his mother by ‘an oral trust and general agreement’ that the property should be his unless he failed to return from the war and in that case it should be hers. Within a month the plaintiff received orders to report for active duty on March 8, 1918. On that day he did report and has been on active duty since that time as lieutenant in the United States Army.

[1] The defendant's first contention is that section 302 here in question is ‘limited to property used by a soldier or sailor or by his dependents for business or dwelling purposes.’ But there is no such limitation in that section. The contention is based on a note made by persons who assisted in making the draft of the bill which resulted in the act here in question, see special April number of the Massachusetts Law Quarterly at page 212. It would seem from this note that the original draft of section 302 contained such a limitation. But after the bill was introduced in the House of Representatives the Judiciary Committee ‘produced a new bill.’ See Massachusetts Law Quarterly, ubi supra, at page 204. The explanation would seem to be that the note which applied to the draft has been published as a note to the act and the limitation in question never became a part of the section as it was enacted.

[2][3] The next contention of the defendant is based upon a finding of the master that the bank had no notice or reason to suppose that the plaintiff was the owner of the property in question. There is nothing in the section here in question which limits its provisions to owners of record or to cases where the mortgagee in fact knew or had reason to knew who the owner of the property was. The act in terms includes every case where the mortgaged property is ‘owned by a person in the military service at the commencement of the period of military service and [is] still so owned by him.’ If the section is construed to apply in every case where the owner is in the military service of the United States whether the mortgagee did or did not know who the owner was, it would seem on the face of it to be a drastic statute. The fact of the owner (when he is ascertained) being or not being in the military service of the United States is a fact which it is at least as hard for the mortgagee to find out as it is for the mortgagee to find out who the owner of the property is. Yet without question there is no such limitation as to that fact. When the relief given by clause 3 of section 302 is taken into account the section construed as stated above is not a drastic one. The section does not forbid the foreclosure of mortgages on property owned by persons in the military service of the United States. What the section does forbid is the foreclosure of such a mortgage under a power of sale (contained in it) ‘unless [the sale under the power is made] upon an order of sale previously granted by the court and a return thereto made and approved by the court.’ Clause 3 of section 302 was enacted to secure to every person in the military service of the United States who owns property subject to a mortgage within the act the relief to which he is entitled under the act. The defendant has urged against this construction of ...