Wood v. Vogel

• Decision Date: 16 December 1920
• Docket Number: 1 Div. 148
• Citation: 204 Ala. 692,87 So. 174
• Parties: WOOD v. VOGEL.
• Court: Alabama Supreme Court

87 So. 174

204 Ala. 692

WOOD v. VOGEL.

1 Div. 148

Supreme Court of Alabama

December 16, 1920

Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.

Bill by Bertram J. Vogel against Harriet E. Wood to redeem property from vendor's foreclosure sale.From a decree overruling demurrers to the bill, respondent appeals.Reversed and rendered.

Thomas and Brown, JJ., dissenting.

Gordon & Edington, of Mobile, for appellant.

Clarke Brown & Kohn, of Mobile, for appellee.

SOMERVILLE J.

The theory of complainant's bill is that, although his normal period for redemption under Alabama laws expired on November 27, 1918, yet, under the provisions of the Soldiers' and Sailors' Civil Relief Act of March 8, 1918(U.S.Comp.St.1918, Comp.St.Ann.Supp.1919, § 3078 1/4a et seq.), the normal period was extended beyond the date of his proffered redemption, to wit, August 4, 1919, by the elimination from that period of the term of his military service, viz. from March 8, 1918, to May 19, 1919.

The demurrer challenges the applicability of the act to a statutory redemption from a foreclosure sale completed before the passage of the act.

The scope and policy of the act is expressed in its first section(section 3078 1/4a) as follows:

"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."

By the express language of subdivision (2) of section 3078 1/4aathe act is made prospective in its operation; and subdivision (3) of section 3078 1/4ff limits its restraint of sales made under a power to such sales as were made during the period of military service, which is defined in section 3078 1/4aa as service beginning with the approval of the act.And, indeed there is no contention that the foreclosure sale under the power was invalid or in any way subject to the provisions of the act.

We find in the act no provision relating to redemption from foreclosure sales made under a power or otherwise prior to the operation of the act, but we assume that complainant's contention is based upon the general provision relating to the limitation of actions (section 3078 1/4e) which is as follows:

"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."

The right of redemption under section 5746 et seq. from judicial and quasi judicial sales of real estate is not a property right, but is a mere personal privilege accorded by the statute, to be exercised in the manner and within the time prescribed by law.Lewis v. McBride,176 Ala. 13457 So. 705;Burke v. Brewer,133 Ala. 389, 32 So. 602;Parmer v. Parmer,74 Ala. 285.It is not a right of action in the sense in which statutes of limitations are applicable, and the prescription of a period of two years within which the privilege must be exercised does not create a statute of limitations.That...