Taylor v. McGregor State Bank

• Decision Date: 05 December 1919
• Docket Number: No. 21483.,21483.
• Citation: 174 N.W. 893,144 Minn. 249
• Parties: TAYLOR v. McGREGOR STATE BANK.
• Court: Minnesota Supreme Court

144 Minn. 249

174 N.W. 893

TAYLOR

v.McGREGOR STATE BANK.

No. 21483.

Supreme Court of Minnesota.

Dec. 5, 1919.

Appeal from District Court, Aitkin County; W. S. McClenahan, Judge.

Action by Bruce N. Taylor against the McGregor State Bank. From an order sustaining general demurrer to the complaint, plaintiff appeals. Order affirmed.

Syllabus by the Court

The act of Congress known as the Soldiers' and Sailors' Civil Relief Act, approved March 8, 1918 (U. S. Comp. St. 1918, § 3078 1/4 a et seq.), was designed and intended to authorize and require in particular instances the restraint and stay of judicial proceedings commenced in any state or federal court for the enforcement of pecuniary obligations against those in the military service of the United States; but it 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. Louis Hallum, of Aitkin, for appellant.

L. T. Mahany, of Aitkin, for respondent.

BROWN, C. J.

Appeal from an order sustaining a general demurrer to plaintiff's complaint.

The facts as disclosed by the complaint, supplemented by certain verbal concessions made by counsel on the argument of the demurrer in the court below, and thus made part of the record, are as follows: Plaintiff and another person were the joint owners of the land and premises described in the complaint, and on December 4, 1915, they mortgaged the same to the Pioneer Life Insurance Company, a North Dakota corporation, to secure the payment of a debt due and owing by them to that company in the sum of $1,617.83. Default was made in the payment thereof, and the mortgage was duly foreclosed by advertisement, as authorized and provided for by our statutes on the subject; the sale thereunder being had on the 14th day of May, 1918, and the right of redemption continuing for the period of one year thereafter, but none was made.

Plaintiff is a citizen of the United States of military age, and on June 14, 1918, 30 days after the date of the foreclosure sale, was duly called and inducted into the military service of the United States under the Selective Service Act of Congress (Act May 18, 1917, c. 15, 40 Stat. 76 [U. S. Comp. St. 1918, §§ 2019a, 2019b, 2044a-2044k]), in which service he thereafter and up to the commencement of this action remained in the active discharge of his military duties in this country and in France. By reason of his call to that service and his retention therein, he has been unable to provide funds with which to make redemption from the foreclosure, and on May 12, 1919, some 10 days before the expiration thereof, brought this action under the act of Congress known as the Soldiers' and Sailors' Civil Relief Act, approved March 8, 1918 (chapter 20, 40 Stat. 440 [U. S. Comp. St. 1918, § 3078 1/4 a et seq.]), and prayed as relief that the time...