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,