Columbia University Libraries Digital Collections: The Real Estate Record

Real estate record and builders' guide: [v. 101, no. 2606: Articles]: February 23, 1918

Text version:

REAL ESTATE AND (Copyright, 1017, by The Record and Guide Co.) NEW YORK, FEBRUARY 23, 1918 STATE MORATORIUM WOULD WORK HARDSHIP Dangerous Precedent Established Should Measure Become Law—Soldiers' and Sailors' Civil Rights Bill Sufficient By CYRIL H. BURDETT, Vice- Pres. New York Title 8b Mortgage Co. rHE United States Senate has passed the Soldiers' and Sailors* Civil lights Bill, which had been previously assed by the House of Representatives, nd the bill is now in conference, having een amended in some unimportant par- iculars by the Senate. It is probable hat the amendments will be agreed to nd the bill be enacted into law within few days, if this has not already been one. There is only a vague idea on he part of the general public as to /hat will result from the passage of his legislation. The subject-matter of he bill in question concerns only the oldier and sailor in the military ser- ice of the United States. There has, however, been introduced ito the Legislature of the State of New ''ork a bill of more comprehensive char- cter than the bill pending in Congress, /hich not only imposes a moratorium or the collection of debts of all kinds 1 favor of all persons who would be unable by reason of circumstances di- ectly attributable to the war to make ayment or satisfaction of such debts," ut contains a specific provision, extend- :ig the moratorium to the collection of he principal of mortgages on real state. The Soldiers' and Sailors' Civil Rights Jill provides that, "for the purpose of nabling the United States the more uccessfuUy to prosecute and carry on he war in which it is at present en- aged, protection is hereby extended to ersons in the military service of the Jnited States in order to prevent pre- udice or injury to their civil rights uring their term of service and to en- ble them to devote their entire energy o the military needs of the nation, and 0 this end the following provisions are nade for the temporary suspension of ;gal proceedings and transactions which nay prejudice the civil rights of per- ons in such service during the continu- nce of the present war." The report of the Committee on the udiciary, in submitting the bill, con- ains these words : "We cannot point out too soon, or too emphatically, that tne bill is not an inflexible stay of all claims against persons in mili¬ tary service. On the contrary, the bill no¬ where prevents a creditor from enforcing the normal collection of any claim which should be paid by a soldier. Not the slight¬ est hindrance is placed upon the service of summons or other p.rocess." And again, "As has already been stated, the scope of the act is to protect the members of the military forces of the United States during the period of the war by providing a general system not of exemption from suit or judg¬ ment, but of conferring discretion upon the courts to grant stays of actions or of execu¬ tion in just cases, and generally by provid¬ ing that the rights of the soldier absent in the service of his country shall be repre¬ sented and protected in the courts." In other words, the legislation is de¬ igned not to relieve the soldier or iailor from the obligation of paying lis debts, but to provide a method by vhich the court may more carefully crutinize the merits of the suit or pro- :eeding brought against him, and. where ustice and equity warrant it, to make )Ossible such an adjustment as will work he least hardship against the absentee mgaged in his country's service. It :eeps in mind, not only the rights of RBCOBD ANP GUIDE the soldier and sailor, but the rights of the creditor, and, so far as is pos¬ sible, the maintenance of normal con¬ ditions among those who stay at home during the continuance of the war. The bill provides that in all actions or proceedings commenced in any court, if there is no appearance on the part of the defendant, an affidavit must be filed, showing that the defendant is, or is not, in military service; and, if the defendant is in military service, the court shall appoint an attorney to represent him and protect his interests. The court may require a bond from the plaintiff, conditioned to indemnify such defendant against any loss or damage that he may suffer by reason of any judgment, should the judgment be thereafter set aside in whole or in part. Court May Appoint. In such action or proceedings, if the defendant, who is in military servi>ce, does not appear by an authorized at¬ torney, the court may appoint an at¬ torney to represent him, and in such case a like bond may be required and an order be made to protect the rights of such person. No attorney so ap¬ pointed shall have power to waive any right of the person for whom he is act¬ ing. If any judgment is rendered ni any action or proceeding during the period of such military service, or within thirty days thereafter, and it appears that such person is prejudiced by reason of the fact that he was in military service, the judgment may, upon application made by such person or his legal representa¬ tive not later than ninety days after the termination of such service, be opened by the court rendering the same, and such defendant be let in to defend, pro¬ vided that it appear that the defendant has a meritorious, legal defense; the va¬ cating and setting aside of the judg¬ ment, however, shall not impair any right or title acquired by any bona fide purchaser for value under the judgment. Stay of Execution. At any stage in any action or pro¬ ceeding commenced against a person in military service, during the period of such service, or within sixty days there¬ after, the court may, in its discretion, on its own motion, and shall on applica¬ tion to it by such person or some per¬ son in his behalf, stay all proceedings, unless in the opinion of the court the ability of the defendant to comply with the judgment or order sought is not materially affected by reason of his military service. In all such actions the court may in its discretion, unless in the opinion of the court the ability of the defendant to comply with the judgment or order sought is not materially affect¬ ed by reason of his military service, First—Stay the execution of any judgment or order entered against such person; Second—Vacate or set aside any attachment or garnishment of prop¬ erty, money or debts in the hands of another, whether before or after judgment as provided in this Act. Such stay may be for such period as the court may determine and subject to such terms as may be just, whether as to payments in installments of such JS IN ITS FIFTIETH VEAR OF CONTI amounts and at such times as the court may fix or otherwise. No eviction or distress shall be made during the period of military service, in respect of any premises for which the agreed rent does not exceed $50 per month, occupied solely for dwell¬ ing purposes by the wife, children or other dependents of a person in military service, except upon leave of court. Such proceeding to be stayed for a period not longer than three months. The Secretary of War is empowered to allot the pay of such person in military service in reasonable proportion to dis¬ charge the rent of such premises. No person holding a contract with a person in military service, for real or personal property, payable in install¬ ments, shall exercise any right or op¬ tion under such contract to rescind or terminate the same except by action in court, aud the court may make such provisions as to terminating the con¬ tract, resuming possession of the prop¬ erty and returning installments previous¬ ly paid, as it may deem equitable to conserve the interests of all parties. Provision is also made covering fail¬ ure on the part of persons in military service to pay premiums accruing on policies of life insurance, up to $5,000, by which such policies are prevented from lapsing. The Government guaran¬ tees the payment of such premiums. If the soldier dies, the insurance com¬ pany gets its premium out of the pol¬ icy. If he comes back, he will repay the premium, if he continues the policy. If he lets the policy lapse, the Government becomes subrogated to his rights. The provisions of the Act also apply to taxes or assessments falling due in respect to real property owned and oc¬ cupied for dwelling or business pur¬ poses by a person in military service, or his dependents, and makes provision for the assertion by such persons of the privileges given under the Act, provid¬ ing for a stay of all proceedings for the sale of said premiums for the non-pay¬ ment of such charges for a period until six months after termination of the war. The question of the constitutionality of the Soldiers' and Sailors' Civil Rights Bill was carefully considered by the Committee on the judiciary, in its report, and the conclusion was reached that nothing contained in it would in any way do violence to some express con¬ stitutional prohibition. Such limitations, considered in con¬ nection with the moratorium, are as follows : 1. Article 1, Section 10. "-No State shall . . . pass any . . . law impairing the obliga¬ tion of contracts;" 2. (Amendments. Article V.) ".Nor shall any person ... be deprived of life, liberty or property, without due process of law;" 3. (Amendments. Article V.) "Nor shall private property be taken for public use, without just compensation." The Committee concluded that the first limitation above referred to is expressly limited to the States, and therefore has no effect whatever upon the powers of the Federal Government, which the framers of the Constitution saw fit to hold free from any such limitations. They further concluded that the power to pass such a bill should be considered as included in the war powers of the National Government, and that it there- NVOUS PUBLICATION,