Bell v. Campbell 123 Mo. 1

Bell, Appellant, v. Campbell et al.

Division Two,

June 12, 1894.

1. Mortgage: cancellation: undue advantage: equity. "Where-a woman, seventy years of age, inexperienced in business and illiterate, is induced by her son-in-law and the sureties upon his official, bond to execute a mortgage on her land to indemnify the sureties on defalcation by the son-in-law by holding out to her the probable punishment of the latter, without affording her a chance to consult any disinterested friend, the mortgage will be set aside.

2. -: -: -: -. The fact that she executed the-mortgage with the purpose of protecting her son-in-law from- criminal prosecution will not bar her from relief on the ground that she was in pari delicto, as she can not be regarded as equally culpable with the defendants.

3. -: -: -: laches: limitation. The fact that she-did not move for relief until after the statute of limitations barred, any prosecution of the son-in-law, the mortgage not 'having matured, will not deprive her of relief, as she will be deemed to have acted", under the original constraint.

*2 4. -: -: -: estoppel. The sureties, in an action by plaintiff to set aside such mortgage, can not successfully set up as a defense that she failed to reconvey land deeded to her by the son-in-law during the transaction and at the same time deny that they are chargeable with anything the son-in-law did in the matter.

5. -: -: -: decree. Where the. plaintiff in a suit tó set aside a mortgage tenders a quitclaim deed of land conveyed to her as a part of the same transaction, the court can compel a conveyance as the price of a decree in her favor.

6. Note: indorsement op interest: presumption. While an indorsement of the payment of interest on a note is prima facie evidence of such payment by the maker, such presumption is repelled by the testimony of the maker to the contrary.

7. Supreme Court Practice: equity case: reviewing rulings and evidence. While the supreme court will in an equity case defer somewhat to the trial court’s finding of facts, yet it will review the latter’s rulings and the evidence offered in their support.

Appeal from Buchanan Circmt Court. — Hon. H. M. Ramey, Judge.

Reveesed and demanded.

The correctness of the abstract in this case, prepared by counsel for plaintiff is virtually conceded by counsel for defendants, who refer to the same from; time to time, in verification of their statement. Prom that abstract we gather the following as the substance of the pleadings and evidence:

By this proceeding, plaintiff sought to prevent the sale of her farm under a deed, of trust to defendant, Campbell, as trustee for the Saxton National Bank and two others. This deed was dated June 25, 1888, and was given to secure three promissory notes of equal amounts aggregating $7,700, due in three years, at eight per cent, payable every ninety days, given by plaintiff to the several beneficiaries aforesaid. And plaintiff also sought to cancel such notes and deed of trust on the ground that they had been obtained by *3undue influence, improper practices, etc. The answer was tantamount to the general issue. Carter, though a defendant, did not answer. Pending litigation, the property in question was sold under the deed of trust, and Stephen C. Woodson, the vice-president of the Saxton Bank, bought in the property for $5,000, and thereupon credits of $1,632.46, each dated August 7, 1891, were indorsed on the several notes, as the product of that sale, less costs, etc. Also indorsements were made on the notes showing interest payable from time to time up to March 25, 1891. Under the signature of plaintiff on the notes payable to the Saxton National Bank appeared the signature of Henry C. Carter. Carter was the son-in-law of plaintiff, he having married her daughter Alma Bell, by whom he had a child, the parties having been married some' twenty years.

Plaintiff was a widow, ignorant, illiterate, unaccustomed to the ways of the world, or with business affairs, and some seventy years of age at the time the transactions which gave origin to the present litigation occurred. She had left the farm, her little all, and had moved to the city and lived close by her son-in-law, Carter, who, it seems, enjoyed her confidence and attended to her affairs, though her son, his wife and two children lived in the same house with her.

In 1875, plaintiff’s husband directly deeded to her the litigated property, and, in 1884, he having died, she occupied it as her homestead until 1887, when she moved to the city. Carter, prior to June, 1888, was treasurer of the city of St. Joseph, and in that capacity had defaulted in the sum of $7,700, His bondsmen were Adam N. Schuster, Louis Hax and S. A. Walker, of the Sehuster-Hax National Bank, Stephen C. Wood-son, J. W. McAllister and A. M. Saxton, of the Saxton National Bank, and Calvin E. Burnes, of the National *4Bank of St. Joseph. At that time Schuster and Burnes were presidents, Woodson a vice president, and Walker a cashier. Shortly after the defalcation, it was agreed between Woodson, Burnes, Walker and Carter that each of the three banks should lend Carter one-third of the money, and that they would accept a joint deed of trust on the Bell farm. There is nothing to show that plaintiff was informed of this agreement or consulted with in reference to it. Nor does it appear that she had any notice about Carter’s defalcation, until some three or four days before she signed the instruments sought to be canceled, or was in any respect informed respecting the responsibility she,was soon to be called upon to assume.

Carter, confronted with his defalcation and its consequences, formed a plan for raising money to make that defalcation good, and with a view to that, determined to have an abstract of the title to the farm of plaintiff made, which was done by Hedenberg early in April, 1888, and, im.order to make the title perfect in every particular, solicited quitclaim deeds from the Bell heirs to the plaintiff, without her knowledge, and, carefully concealing his purpose from the heirs. With this end in prospect, he wrote letters stating to them that plaintiff wished to sell the farm, but could not do so without quitclaim deeds from them, and also went on a trip to Andrew county to see a sister-in-law. Accompanying him was a detective whom the chief of police sent with him, fears being entertained from his manner and actions that he would commit suicide. Very close surveillance was kept over him by the detective on this account; in fact, while on this mission he was in a state of semi-arrest.

Carter, failing to procure deeds from the heirs as he desired, sent for plaintiff a few days before the deed of trust was executed, that is to say about the *5twenty-first of June, 1888, to call at his house. She called, and then his importunities began. He disclosed to her his situation, the amount that he was'liable for to the city, his inability to raise the sum without her help, the likelihood that he would be sent to jail unless the money were obtained, and then implored her to save him from disgrace by giving a mortgage on her farm, which she stoutly refused to do. Again and again he renewed the attack during the space of four days, and, taking plaintiff by the hand, he got on his knees and begged her to give the mortgage on her farm or else he was ruined, but plaintiff steadfastly refused. About 8 o’clock on the morning of June 25, 1888, while plaintiff and her daughter-in-law were clearing off the breakfast table, Carter came in there, requested to see plaintiff when at leisure, then passing on into the sitting room where he paced backwards and forwards, uttering groans that were heard in the dining room. A few moments later Carter’s son “Lolly” came in and told plaintiff that his father said he would never leave her house; he would cut his throat before he would leave the house if she did not sign the deed. Carter thereupon told plaintiff that he had come to her for the last time; that if she did not sign the deed, she would have to care for his family, etc., appealing to her to help him by all the considerations likely to touch a parent’s, and especially a mother’s, heart. His wife and child were there, also, while Carter was beseeching plaintiff to come to his rescue, and united their prayers with his.

Of this, plaintiff testifies his child came and said: “ ‘Grandma, what will we do?’ and said his father would never leave the house; and directly she came (Mrs. Carter). * * * I says, Harry, I can not do it; and he paced the floor back and forth, until his family came and excited me to death; * * * he was there and she was there, and she was just going on; she *6did not know anything, in fact.” While plaintiff was thus surrounded by all these distressing circumstances, Carter left at about 11 o’clock and called at the mayor’s office, requesting Mr. Englehart to call at his house and endeavor to relieve the distress of his wife. The mayor replied that he could only say to her that he would not suspend him from the office of auditor, to which he had been recently elected, if his shortage as treasurer was made good. This, Carter thought, would “relieve her mind,” and the mayor replied, “I will come up after a while.”

Carter also had another call to make before his return, and he made it. It was upon S. C. Woodson. The purpose of that call is best explained in the language of that witness, who says: “On the evening preceding my going, Mr. Carter came to me, and said his wife was very much distressed, and asked me if I would not go up and see if I could not pacify her about this matter, stating that he had made arrangements by which the notes would be executed to these different parties, and I told him that I would go when he so desired.” Carter at once called upon Mr. Woodson to keep his promise of the day before, and they went to the house together, the mayor following shortly after, alone. Why Englehart and- why Woodson were called upon to visit Mrs. Carter “to pacify her” or “relieve her distress,” seeing that they were entire strangers to her, is not explained. On his arrival, Woodson entered the parlor, and Carter calling his wife from the sitting room, introduced her to him. At this point Woodson says: “She was right smartly distressed, and had an impression that they were going to prosecute her husband and try to send him to the penitentiary, and she was disturbed over that, and that was what we had gone there for, to try to pacify her and satisfy her that there was no probability of their sending him to the penitentiary.” *7With the understanding that all arrangements for the execution of the mortgage had been made, Woodson entered upon his duties as pacificator; he says: f“I told Mrs. Carter I did not think there would be any disposition upon the part of any of these parties to prosecute Mr. Carter.

While thus engaged, Mrs. Carter being much excited and weeping, plaintiff entered the room, and shortly thereafter Mrs. Carter fainted or swooned, and Woodson, according to plaintiff and the younger Mrs. Bell, exclaimed to plaintiff: “Mrs. Bell, how can you stand this, to see your child suffer like that? Do you think I could stand that? No, not for my right arm!” Woodson, however, denies this. Restoratives having been applied, Mrs. Carter was removed from the parlor into the sitting room and placed on a lounge. Open folding doors furnished communication between these rooms, and Mrs. Carter was within ten feet of the doors. At this juncture Englehart arrived upon the scene. He too was one of the chosen comforters of Mrs. Carter and he says he found Woodson ánd Carter there in .the parlor and Mrs. Carter on the lounge in the adjoining room, where she remained, emitting sighs and groans, and was evidently in great mental distress.

No surprise appears to have been occasioned by the meeting of these two men, though not apprised of each other’s coming, or of the object of their mutual visit. Nor does Englehart seem to have been informed of what had occurred just prior to his arrival. Soon after Englehart’s arrival, the subject of Carter’s shortage came up and was the subject of general conversation, during which, true to his promise, Englehart, the mayor, “speaking sufficiently loud for Mrs. Carter to hear,” said: “that considerable pressure had been brought to bear upon him to suspend Carter from office, but that he would not suspend him as auditor if his shortage as *8treasurer was made good. ’ ’ The effect of this upon Mrs. Carter was not apparent, but about this time plaintiff, who was with Mrs. Carter in the sitting room, entered the parlor, and after some conversation with the mayor upon the subject of the shortage, asked what he would advise her to do in the matter of signing a mortgage; and he replied, “Mrs. Bell, I can not advise you in that matter.;; This was the only appeal that plaintiff made; there was no one else to whom she could appeal; and. .the mayor says: “She seemed to be pretty calm, sir; not much excited — no more than the case would warrant.”

Woodson and Englehart left simultaneously. They were not dismissed from the house, nor did their ideas •of the requirements of the occasion prompt them to say so much as “good bye” to anyone on taking their departure. However, Woodson offers a seeming excuse for the incivility of thusleaving by saying, ‘‘Well, Mrs. 'Carter ivas very much excited.” On their way homeward, very little was said between these parties about the recent occurrences at the house.

Hedenberg, conveyancer and notary, then entered his appearance at the home of plaintiff. He had been employed, as already stated, to prepare the abstract, and subsequently he had also been directed by Carter to prepare three notes for the aggregate sum of $7,700, due in three years, with a deed of trust upon the Bell farm; also to prepare a warranty deed from Carter to plaintiff. Hedenberg called with these papers immediately after the departure of Woodson and Englehart, and found plaintiff in the sitting room and Mrs. Carter still on the lounge. After some conversation with the plaintiff he concluded that it would not be proper to take her aclmoivledgment, that she would not sign the deed willingly, and he started to leave. Groing into the parlor and picking up his hat, he waited for Carter, who had *9lingered in the sitting room. During this time, according to Hedenberg, a conversation between plaintiff and someone was going on in there that he did not hear so as to know what was said, but it is evident that the younger Mrs. Bell refers to this conversation when she says: “Mr. Carter said: ‘We must hurry, mother; Mr. Englehart has to leave the city at 2 o’clock/ ” etc. Here Mrs. Carter left the lounge and the room. In a few moments Hedenberg was recalled, but by whom he cannot tell. Mrs. Carter was gone. Seated at a small table with the papers all laid out together, Hedenberg signed and witnessed plaintiff’s name, and she, much agitated, “in a flurry,” stepped to his side, and touched the pen while standing.

The confusion and excitement then prevalent in that little household is shown in a very pronounced manner in the testimony of these women, for both roundly declare that but one paper was signed, and the younger says that Hedenberg signed it standing. These notes and deeds of trust being signed and acknowledged by plaintiff, then for the first time, the warranty deed from Carter was mentioned; plaintiff speaks of it as a mortgage; in fact, in respect to all these papers that she received, she says that “they was mortgages on Mr. Carter’s property.” Hedenberg told her he would attend at once to its execution, and leaving the notes, took with him the deed of trust and warranty deed. At this time he had no knowledge of the $7,700 note from Carter and wife which he after-wards unwittingly delivered to plaintiff.

Having certified at his office the acknowledgments of all parties to these deeds, Hedenberg handed the deed of trust to Carter. Carter took it, the note to the Saxton Bank and the abstract to Woodson. When this note came to Woodson it alone of the three had Carter’s name on it. Where this name was signed *10does not appear, and neither plaintiff nor Mr. Hedenberg had any knowledge whatever of the fact.

After Woodson had approved the loan and directed a credit to the Schuster-Hax Bank, Carter handed the abstract to Hedenberg, who, later in the day, personally delivered it and the warranty deed to the plaintiff. Among these papers was afterwards found this $7,700 note. Hedenburg did not know it was among them, and it is clear from plaintiff’s testimony that she was not aware of it. In fact she seems never to have known she had it, or to have understood the character of any of these papers. She put them away, never recorded the deed, and they were not examined until furnished to her counsél just before the institution of this suit.

On the next day, June 26, Carter handed the other two notes to Mr. Walker of the Schuster-Hax Bank. These notes were made to Burnes and Schuster, and by them indorsed to their respective banks. After ascertaining from Woodson that he had secured the mortgage on the Bell farm, had it recorded, etc., Walker got a cashier’s check from the National Bank of St. Joseph, and credited $7,700 to Carter’s account as treasurer.

About eight months after the signing of these papers, plaintiff’s son left her and' went to himself, and she moved to, and has ever resided in, Carter’s house. Interest was regularly paid to the three banks, but not by the plaintiff, nor out of her money. She heard nothing of the notes until maturity. Upon her failure to pay, the property was advertised, and at the sale Mr. Woodson became the purchaser. In the meantime, however, a son-in-law, McG-ee came in from Oberlin, Kansas, found the farm advertised for sale, and the plaintiff living with Carter. After a brief consultation with her this suit was brought. There was no *11evidence as to the value of the farm except that it brought $5,000 at the trustee’s sale.

Other facts, if necessary, will be adverted to further on. The court below dismissed plaintiff’s petition; hence this appeal.

Stephen S. Brown and James F. Pitt for appellant.

Whatever destroys- free agency and constrains the person whose act is brought in judgment to do what is against his will, and what he would not have done if left to himself, is undue influence, whether the control be exercised by physical force, threats, importunity, or any other species of mental or physical coercion.' Turley v. Edwards, 18 Mo. App. 676; Sharon v. Gager, 46 Conn. 189; Eadie v. Slimmon, 26 N. Y. 9; Foley v. Green, 14 E. I. 618; s. c., 51 Am. Eep. 419; Jordan v. Elliott (Pa. 1882), 15 Cent. L. J. 232; Meech v. Lee, (Mich. 1890), 46 N. W. Eep. 383. (2) Plaintiff has not been guilty of delay or laches which would bar her recovery. Gowland v. BeFaria, Vt Yes. 20; Buck v. Bank, 27 Mich. 293; Sumner v. Summers, 54 Mo. 340.

Porter é Woodson and B. B. Vineyard for respondents.

(1) To establish duress or undue influence in procuring a deed or any other contract formally executed, requires proof that is strong, clear, convincing, and leaves no ground for. reasonable doubt in the mind of the chancellor. Atkinson v. Henry, 80 Mo. 157; Jackson v. Wood, 88 Mo. 78; Linnenkemper v. Kempton, 58 Md. 159. In cases of duress or undue influence the certificate of acknowledgment of the officer to the deed “makes out a prima facie case that the execution was a voluntary act.” Clark v. Edwards, 75 Mo. 87, 89 at top; cited approvingly in Webb v. Webb, 87 Mo. *12540; Bennett v. Davis, 104 Mo. 555, at bottom; Rust v. Goff, 94 Mo. 511. (2) While it would seem unnecessary, in a ease like this, where the decision of the court is so manifestly just, to call the court’s attention to the rule now so well settled, that the supreme court will defer considerably to the findings of fact by the trial court in chancery proceedings, yet we do so by citing the following authorities: Chouteau v. ' Allen, 70 Mo. 336; JErskine v. Lowenstein, 82 Mo. 309; Springer v. Kleinsgorge, 83 Mo. 159; Berry v. Hartzell, 91 Mo. 138; Bushong v. Taylor, 82 Mo. 666; Mathias v. O’Neill, 94 Mo. 530. (3) Before one can exercise the right of rescission of a contract, the plaintiff, before bringing suit, must tender back all that he may have received. And in case land has been conveyed to plaintiff on the faith of the contract, a deed must be made reconveying the land, and a delivery of the deed, or offer to deliver the deed, must be shown. This is prerequisite to the right to sue. Calm v. Reid, 18 Mo. App. 115; Pearsal v. Chapin, 44 Pa. St. 9; Jarrett v. Morton, 44 Mo. 275; Cobh v. Hatfield, 46 N. Y. 536; Wells v. Gates, 6 Mo. App. 244; 2 Grreenleaf on Evidence, sec. 602; Bronson v. Turner, 77 Mo. 494; Pershing v. Canfield, 70 Mo. 143; Turner v. Ogden, 1 Black (U. S.) 450. (4) The record in this case fails to show any duress of the person of Carter, or anyone else. There is no pretense that anyone threatened him with personal violence, or- even threatened him with any criminal prosecution. See the closing part of defendant’s statement, supra, and references therein to the record. Dausch v. Crane, 109 Mo. 332; Wolfe v. Marshall, 52 Mo. 167; Claflin v. McDonough, 33 Mo. 412; Davis v. Luster, 64 Mo. 43; 69 Ala. 98; Mundy v. Whittemore, 15 Neb. 647; Lefebvrev. Dutruit, 51 Wis. 326. It is held on good authority, that, even if Carter’s arrest and imprisonment had been threatened, unless *13accompanied with the statement that the prosecution had been already begun, such fact would not have avoided plaintiff’s contract. Buchanan v. Sohlein, 9 Mo. App. 552; Harmon v. Harman, 61 Me. 227; Higgins v. Brown, 78 Me. 473. (5) The right to rescind a contract on account of fraud or duress, must be exercised promptly on the discovery of the fraud or the removal of the duress. Delay is destructive of the right. Taylor v. Short, 107 Mo. 384; Estes v. Reynolds, 75 Mo. 563; Calm v. Reid, 18 Mo. App. 123; Lapp v. Ryan, 23 Mo. App. 439; Hart v. Handlin, 43 Mo. 175; Grymes v. Sanders, 93 U. S. 55; Plympton v. Bunn, 148 Mass. 523; Beeteni’s Adm’r v. Burkholder, 69 Pa. St. 249; Burtle v. Levy, 70 Cal. 250; Bisbrow v. Secor, 58 Conn. 35; Hunt v. Hardioiclc, 68 G-a. 100. (6) Duress to constitute a good defense, must have been brought about by or at the instance of the promisee or grantee who furnished the consideration for the agreement. Lefebvre v. Batruit, 51 Wis. 326; Compton v. Bank, 96 111. 301; Ins. Co. v. Franks, 53 Iowa, 618; Moog v. Strong, 69 Ala. 98. (7) Where a person has committed a crime, a threat to have him arrested and imprisoned, being only a threat of a lawful arrest, will not constitute duress, in any such sense as will discharge him or others, acting in his behalf, from liability upon a contract to indemnify those injured by the commission of the offense. Bavis v. Luster, 64 Mo. 43; Hilborn v. Bucknam, 78 Me. 484; Compton v. Bank, 96 111. 301; Mascólo v. Montesanto, 61 Conn. 55; Plants v. Gunn, 2 Woods, 372; Eddy v. Herrin, 17 Me. 338; Green v. Scranage, 19 Iowa, 461. But, as previously stated, there were no threats of any criminal proceeding proved in this case to have been made against Carter, and this rule of law need not be invoked here. (8) In order to invalidate a contract entered into through threats, it must appear that the menace was of *14an unlawful prosecution. Harmon v. Harmon, 61 Me. 227; Mascólo v. Montesanto, 61 Conn. 55.