Opinion filed January 7, 1936.
Worthy Debtor's Relief Act — P.L. 2299, as Amended, to be Liberally Construed — No Power to Reopen Decree after Expiration of Redemption Period — Service of Process as Commencement of Action — Jurisdiction over Petition to Extend Redemption Period Served after Expiration Thereof.
1. P.L. 2299, as amended by sec. 1, No. 49, Acts of 1935, providing for extension of the redemption period in foreclosure proceedings in certain cases, is remedial in nature and to be liberally construed.
2. Chancellor has no power under P.L. 2299, as amended, to reopen decree of foreclosure after expiration of period of redemption.
3. To confer jurisdiction on chancellor to reopen foreclosure decree under P.L. 2299, as amended, it must appear that the proceedings were commenced before expiration of period of redemption.
4. Except with reference to the statute of limitations, an action in personam is not treated as commenced until process is served.
5. Where order of notice on petition to extend redemption period in foreclosure proceedings under P.L. 2299, as amended, was signed by chancellor prior to expiration of period specified in decree of foreclosure, but service on plaintiff in such proceedings was not made until after the expiration of such period, held that chancellor had no jurisdiction under the statute to pass upon the petition.
APPEAL IN CHANCERY. Petition under P.L. 2299, as amended by sec. 1, No. 49, Acts of 1935, by defendant in foreclosure proceedings for extension of redemption period. Heard on petition at the April Term, 1935, Franklin County, Sherman, Chancellor. Petition dismissed for lack of jurisdiction. The petitioner appealed and filed bill of exceptions. The opinion states the case. Decree affirmed and cause remanded.
P.C. Warner for the defendant petitioner.
Wm. R. McFeeters for the plaintiff petitionee.
Present: POWERS, C.J., SLACK, MOULTON, THOMPSON and SHERBURNE, JJ.
On May 8, 1934, the People's Trust Company of St. Albans obtained a decree of foreclosure of a mortgage on real estate against the mortgagors H.C. Billado and Love Dunster Billado, and the second mortgagee Leon Perry, by which the period or redemption, as to the latter, expired on June 8, 1935. On June 4, 1935, Perry prepared a petition under P.L. 2299, as amended by sec. 1, No. 49, Acts 1935, seeking an extension of time in which to redeem, and obtained an order of notice from the chancellor on June 7. The petition and order were served upon the Trust Company on June 11. The matter came on for hearing on June 15, and the chancellor dismissed the petition, holding that he was without jurisdiction to entertain it, because service had not been made until after the decree of foreclosure had become absolute. An appeal was taken from this ruling.
P.L. 2299, as amended, provides that "* * * the chancellor at the time of entering the decree of foreclosure, in his discretion, may extend the time within which the premises may be redeemed, for such period and upon such terms and conditions as may appear to him to be equitable under the existing circumstances, and at any time thereafter, upon the petition of the mortgagor or those holding under him, on notice to the mortgagee and after hearing thereon, may reopen such decree and make further orders relating thereto as in his judgment and discretion may be proper. The provisions of this section, so far as pertinent thereto, shall apply to decrees heretofore entered where the time therein fixed for redemption has not expired on the date of such petition."
There are two questions involved in the decision of this cause: (1) Whether the statutory proceeding to reopen the decree must be commenced before the expiration of the period of redemption. (2) If so, whether the mere signing of the order of notice constitutes such commencement.
The last sentence in the statute above quoted is not applicable to the situation in this cause, since it relates only to decrees of foreclosure entered before the effective date of the act, which was February 28, 1935. P.L. 2299, as amended, is a part of chapter 98 of the Public Laws, known as the Act for the Relief of Worthy Debtors. An examination of the other sections of the chapter discloses that in all cases in which it is provided that the court of chancery may intervene for the protection of a debtor, action must be taken before the proceedings against him have reached the point when the enforcement of the lien has been completed. We cannot suppose that there was a different legislative intent here. The phrase "and at any time thereafter" does not confer a jurisdiction unlimited as to time, but refers only to the period during which the right of redemption is open and available. Although the act is remedial in nature, and so is to be liberally construed (In re Dexter, 93 Vt. 304, 312, 107 A. 134), it is clear that it is not to be interpreted as even an attempt to confer upon the chancellor the power to disturb a title to real estate vested by virtue of a decree which has become absolute according to its tenor, and concerning which no fraud, accident or mistake or other ground of invalidity is claimed or shown. No "public emergency" such as is declared in P.L. 2296 to be the reason for this legislation could justify a different conclusion.
So, in order to confer jurisdiction, it must appear that the proceedings were commenced before the expiration of the period of redemption. In Blain v. Blain, 45 Vt. 538, 543, it is said that "we are not aware that the making of a writ or petition, without summons or citation, and signed by no magistrate or judicial authority, has ever been held the commencement of the suit" and from this the appellant argues that inferentially the signing of a citation ought to be considered the commencement of the proceeding. But the general rule is that, except in the case of the statute of limitations, an action in personam is not treated as commenced until process is served. Bellows, Exr. v. Blake, 106 Vt. 204, 207, 170 A. 906, and cases cited; Tracy v. Grand Trunk Ry. Co., 76 Vt. 313, 319, 57 A. 104; McDaniels v. Reed, 17 Vt. 674, 679. Until then, as is said in the case last cited, the defendant has no interest in the writ, and is in no way affected by it. We hold that the signing of the order of notice by the chancellor was not enough, and that these proceedings were not commenced until the service of the petition and order was made. The chancellor was right; he had no jurisdiction, and could do nothing else than dismiss the petition, as he did.
It is unnecessary to decide whether a second mortgagee is a person who holds under the mortgagor, and as such is entitled to maintain a petition to reopen the decree.
Decree affirmed and cause remanded.