Twitchell v. Home Owners' Loan Corp., Civil 4476

• Decision Date: 16 February 1942
• Docket Number: Civil 4476
• Citation: 59 Ariz. 22,122 P.2d 210
• Parties: WIRT BEECHER TWITCHELL, Jr., Appellant, v. HOME OWNERS' LOAN CORPORATION, a Corporation, Appellee
• Court: Arizona Supreme Court

122 P.2d 210

59 Ariz. 22

WIRT BEECHER TWITCHELL, Jr., Appellant, v. HOME OWNERS' LOAN CORPORATION, a Corporation, Appellee

Civil No. 4476

Supreme Court of Arizona

February 16, 1942

APPEAL from an order of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Order set aside.

Mr Henry H. Miller, for Appellant.

Mr Milton L. Ollerton, for Appellee.

OPINION

LOCKWOOD, C.J.

This is an action by Home Owners' Loan Corporation, plaintiff filed July 29, 1941, against Ethel I. Twitchell, Luella Twitchell Fedderson, Robert Fedderson, Jr., defendants, and others, to foreclose a mortgage on lot 10, re-plat of lot 28 Los Olivos Amended, an addition to the city of Phoenix.

Plaintiff claimed that the payments on the note evincing the indebtedness, for which the mortgage was given as security, were past due, and that by reason thereof, and an acceleration clause in the note and mortgage, the whole amount was due and payable.

Wirt Beecher Twitchell, Jr., filed a motion to intervene and an answer in support of his motion. The allegations of the motion were substantially as follows: In 1938 he left the University of Southern California and discontinued his education in order to help support his mother, Ethel I. Twitchell, one of the defendants herein, and to take care of her property. It was then understood and agreed between them that in consideration of such support and his taking care of the payments on the property, she would convey to him the premises subject to the mortgage, and that at the time of the motion she had ratified and confirmed such agreement. In reliance upon such agreement intervener made payments on the note and mortgage up to January 6, 1941, and also paid the taxes on such premises up to that date, amounting all told to several hundred dollars. On said last date he was inducted into the military service of the United States by his Selective Service Board, and at the time of his motion was a sergeant in the United States Army. Because of reduced income by reason of his service in the army he had been unable to make payments on the note and mortgage aforesaid since the time of his induction, but would be able to, and would, resume such payments as soon as he was discharged from the military service. He alleged that because of the foregoing facts he owned an equitable interest in the premises, and, under the Soldiers' and Sailors' Civil Relief Act, 50 U.S.C.A. Appendix, § 501 et seq., was entitled to intervene and to have the mortgage foreclosure, as aforesaid, continued and held in abeyance until the time of his discharge from the army. The trial court denied the motion to intervene and intervener has appealed.

The sole question for our consideration is whether upon the facts alleged in the motion the court erred in denying it. This depends upon the construction of the provisions of the Soldiers' and Sailors' Relief Act of October 17, 1940, duly adopted by the federal government. The pertinent portion of the Act is section 302 thereof, which reads as follows:

"(1) 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, except as provided in section 303 (section 533 of this appendix), 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." (Italics ours.)

It is agreed by both plaintiff and intervener that if the latter falls within the meaning of the Act, as the owner of the property in question, he was entitled to intervene, but if he is not such owner, he may not. It is admitted that the record title to the property is in defendant Ethel I. Twitchell, and was at the time intervener entered the military service of the United States, but the latter contends that under the facts set forth he has an equitable interest in the property, and that equitable, as well as legal, interests come within the spirit and intention of the Act as making him an owner of such property and therefore, entitled to...