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.
[59 Ariz. 23] 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 [59 Ariz. 24] 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.
[59 Ariz. 25] 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 ...