Poston v. Ebert

• Decision Date: 29 December 1922
• Docket Number: Oct. Term.,No. 41,41
• Citation: 191 N.W. 202,221 Mich. 361
• Parties: POSTON v. EBERT et al.
• Court: Michigan Supreme Court

221 Mich. 361

191 N.W. 202

POSTON

v.EBERT et al.

No. 41, Oct. Term.

Supreme Court of Michigan.

Dec. 29, 1922.

Appeal from Circuit Court, Wayne County, in Chancery; Arthur Webster, Judge.

Suit by Harry P. Poston against Edmund L. Ebert, Andrew J. Keary, and Ella R. Keary. From a decree dismissing his bill, plaintiff appeals. Reversed.

Argued before FELLOWS, C. J., and WIEST, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.Cohane, Rholdes, Garvett & Frankel, of Detroit (Louis Cohane, of Detroit, of counsel), for appellant.

Elmer H. Groefsema, of Detroit, for appellees.

CLARK, J.

Plaintiff by deed became the owner of eight lots in Detroit. The deed was subject to ‘a real estate mortgage in the sum of $200.00 on each lot or parcel of land aforesaid which the second party hereby assumes and agrees to pay.’ The mortgagees were Andrew J. Keary and Ella R. Keary, defendants. The mortgage contained a power of sale. Under the provisions of chapter 249, Comp. Laws 1915, relating to foreclosure of mortgages by advertisement, the premises were sold February 5, 1918, to the mortgagees. The sheriff made and executed a deed and delivered it to the register of deeds pursuant to the statute. At the expiration of one year, the period of redemption, the premises not having been redeemed, the register delivered the deed, to the purchasers as the law directs.

On March 8, 1918, the Soldiers' and Sailors' Civil Relief Act was approved by the President. Section 3078 1/4 a et seq., U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919.

On September 29, 1918, plaintiff entered the military service of the United States, and on May 4, 1919, he was honorably discharged. He filed a bill to redeem from the foreclosure having tendered the amount due. His bill was dismissed. He has appealed.

In measuring the period of redemption from foreclosure by advertisement should the period of military service be excluded?

We quote three sections of the act:

‘Sec. 100. That for the purpose of enabling the United States the more successfully to prosecute and carry on the war in which it is at present engaged, protection is hereby extended to persons in military service of the United States in order to prevent prejudice or injury to their civil rights during their term of service and to enable them to devote their entire energy to the military needs of the nation, and to this end the following provisions are made for the temporary suspension of legal proceedings and transactions which may prejudice the civil rights of persons in such service during the continuance of the present war.’

‘Sec. 205. That the period of military service shall not be included in computing any period now or hereafter to be limited by any law for the bringing of any action by or against any person in military service or by or against his heirs, executors, administrators, or assigns, whether such cause of action shall have accrued prior to or during the period of such service.’

‘Sec. 302. (1) That the provisions of this section shall apply only to obligations originating prior to the date of approval of this act and secured by mortgage, trust deed, or other security in the nature of a mortgage upon real or personal property owned by a person in military service at the commencement of the period of the military service and still so owned by him.

‘(2) In any proceeding commenced in any court during the period of military service to enforce such obligation arising out of nonpayment of any sum thereunder due or out of any other breach of the terms thereof occurring prior to or during the period of such service, the court may, after hearing, in its discretion, on its own motion, and shall, on application to it by such person in military service or some person on his behalf, unless in the opinion of the court the ability of the defendant to comply with the terms of the obligation is not materially affected by reason of his military service--

‘(a) Stay the proceedings as provided in this Act; or

‘(b) Make such other disposition of the case as may be equitable to conserve the interests of all parties.

‘(3) No sale under a power of sale or under a judgment entered upon warrant of attorney to confess judgment contained in any such obligation 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 by the court.’

In dismissing the bill Judge Webster said:

‘An examination of the Soldiers' and Sailors' Civil Relief Act has satisfied me that (whether designedly or through oversight) it has failed to cover the case of a statutory redemption period which began to run before the passage of the act. This being true, plaintiff's right to redeem expired February 5, 1919. * * *’

His opinion is fully supporte by Taylor v. McGregor State Bank, 144 Minn. 249, 174 N. W. 893, where it was held, quoting from syllabus:

‘The act * * * has no application to the nonjudicial proceeding for the foreclosure of a real estate mortgage by advertisement, as authorized by our statutes, which was fully completed by a sale of the mortgaged property prior to the commencement of the military service of soldier affected, though the period of redemption had not then expired.’

And citing the above case, a majority of the court held in Wood v. Vogel, 204 Ala. 692, 87 South. 174, quoting from syllabus:

‘The right of redemption given by Code 1907, § 5746 et seq., from judicial and quasi judicial sales is a mere personal privilege, and must be exercised within the two years prescribed; hence the Soldiers' and Sailors' Relief Act (U. S. Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3078 1/4 e), declaring that the period of military service shall not be included in computing any period of limitation, does not apply so as to extend the time within which the right of redemption may be exercised.’

The act does not in precise terms refer to a limitation or foreclosure such as this. If the act must be strictly construed, the opinion of the trial judge and the cases cited are right. But we think the act should be construed liberally to accomplish the congressional purpose indicated in the section quoted. Of a somewhat similar statute it was said in Stewart v. Kahn, 11 Wall. 493, 20 L. Ed. 176:

‘A case may be within the meaning of a statute and not within its letter, and within its letter and not within its meaning. The intention of the lawmaker constitutes the law. The statute is a remedial one and should be construed liberally to carry out the wise and salutary purposes of its enactment.’

We quote from Ozawa v. United States, 43 Sup. Ct. 65, 67 L. Ed. 199, decided Nov. 13, 1922:

‘It is the duty of this court to give effect to the intent of Congress. Primarily this intent is ascertained by giving the words their natural significance, but if this leads to an unreasonable result plainly at variance with the policy of the legislation as a whole, we must examine the matter further. We may then look to the reason of the enactment and inquire into its antecedent history and give it effect in accordance with its design and purpose, sacrificing, if necessary, the literal meaning in order that the purpose may not fail. See Church of the Holy Trinity v. United States, 143 U. S. 457;Heydenfeldt v. Daney Gold, etc., Co., 93 U. S. 634, 638.’

Of the act it was said in Steinfield v. Mass. Bond & Ins. Co. (N. H.) 112 Atl. 800:

‘It was not the legislative intent that the remedial purpose of the act should be defeated by a narrow or technical construction of the language used. Halle v. Cavanaugh, 111 Atl. 76.’

And see Clark v. Mechanics' Am. Nat. Bank (C. C. A.) 282 Fed. 589.

The provision of our statutes limiting the right of redemption from this foreclosure of mortgage to one year is not strictly a limitation of action. But relative to like limitations in analogous cases the act has been construed liberally and, we think, rightly.

In Kuehn v. Neugebauer (Tex. Civ. App.) 216 S. W. 259, it was said:

‘On April 25, 1918, this cause was reversed and was remanded to the district court of Hays county for a new trial. 204 S. W. 369. No motion for rehearing was ever filed. A few days prior to August 30, 1919, the appellee paid the costs of the appeal, and requested the clerk of this court to issue a mandate to the trial court, in order that he might proceed with the prosecution of the cause, which request was refused by the clerk, upon the ground that the costs had not been paid within one year from the date of the judgment of this court, as required by article 1559, Revised Statutes.’

And held, quoting from syllabus:

‘Soldiers' and Sailors' Civil Relief Act * * * authorizes the appellate court to grant a motion of an appellee, requesting it to instruct the clerk to issue a mandate, although costs had not been paid within one year from the reversal of a judgment in favor of appellee, it appearing that appellee entered the military service of the United States, before he became aware of reversal of his judgment, and served overseas until within three months of filing his motion, notwithstanding Rev. St. 1911, art. 1559, which leaves the appellate court without discretion to order the issuance of the mandate when costs are not paid within the year.’

And also said:

‘The writer thinks it is proper to add that he is of the opinion that article 3078 1/4 e, relating to limitations of actions, is also applicable to ...