Lomerson v. Johnson

• Citation: 44 N.J.E. 93,13 A. 8
• Parties: LOMERSON v. JOHNSON et ux.
• Decision Date: 23 February 1888
• Court: New Jersey Court of Chancery

13 A. 8

44 N.J.E. 93

LOMERSON

v. JOHNSON et ux.

Court of Chancery of New Jersey.

February 23, 1888.

(Syllabus by the Court.)

On bill to foreclose.

J. G. Shipman & Son, for complainant. W. H. Morrow, for defendants.

BIRD, V. C. The complainant files a bill to foreclose a mortgage which was given to him by the defendants to secure the payment of a bond given by the defendant Mr. Johnson to the complainant, conditioned for the payment of $6,432.02. Mrs. Johnson files her answer, and resists the foreclosure of this mortgage upon the ground that she was induced to join with her husband, in executing this mortgage upon her separate estate, by unlawful influences, threats of the imprisonment of her husband, the real debtor, and other fraudulent practices upon the part of the complainant, amounting to undue pressure. Mr. Johnson was the executor of his father-in-law's will. The complainant, Mr. Lomerson, became one of his sureties for the performance of the trust. In the progress of the settlement of the estate, Mr. Johnson gave to the complainant two bonds, one for $6,000, and one for about $6,400, secured by a mortgage on certain real estate of Mr. Johnson's. Mrs. Johnson joined in the execution of this mortgage. On the 7th of July, 1883, but a few months after the execution of the mortgage already mentioned, the mortgage now in suit was executed by Mr. and Mrs. Johnson; and the question is, under the pleadings and the proof, whether or not, under the circumstances of the case, Mrs. Johnson is entitled to be relieved from this mortgage. At the time of the execution of this mortgage Mr. Johnson was about 76 years of age, and was feeble in health. However, there is nothing to show that he was feeble in mind, or in any way broken down physically. He was not only about the premises at the time, but he called upon the attorney who prepared the mortgage on the day it was prepared; but whether he asked him to prepare it or not does not appear. Mrs. Johnson, who was well advanced in years, had suffered a good deal of anxiety because of business troubles in the family, and because of the loss of three of her children. But there is nothing in the appearance of Mrs. Johnson, upon the witness stand, nor in her expressions as a witness, which would indicate any incapacity upon her part to understand ordinary business transactions and the reasonable effects to flow therefrom. It will be seen that I must come to this conclusion with respect to Mrs. Johnson, who testifies in her own behalf, in order to give any very great efficacy to her statements as a witness. She says that Mr. Lomerson came to her house, and said that he wanted her to give a mortgage as collateral security for the payment of this $6,400; this being the amount of money due to persons known as the "Hornbacker heirs." She inquired who wanted her to give this mortgage, and Mr. Lomerson said Mr. Shipman, who was a prominent lawyer in the village, and a warm friend of Mrs. Johnson's, and a Mr. McMurtrie, who might be called upon as surety. She replied that she could not do it, and asked Mr. Lomerson if he wanted to send her to the poor-house. She says Mr. Lomerson then said: "If you don't, Levi will go to jail." She inquired who would put him there, and Lomerson said Mr. Shipman would. At this instant her daughter Carrie, who was present, said to her mother, "Don't you do it," when Mrs. Johnson said, "Father cannot live through it," referring to her husband. Mr. Lomerson wanted Carrie to put her lot in also, and she refused to do it. While this interview was progressing, dinner was served. Mr. Lomerson, having been a warm friend of the family for a long time, dined with them. After dinner Mr. James M. Robeson, counsel for Mr Lomerson, brought the bond and mortgage, which were executed by Mr. Johnson, and acknowledged before Mr. Robeson, after which Mrs. Johnson signed and acknowledged the same according to the statute. Mr. Robeson has since died, and his testimony cannot be had. Mrs. Johnson says when she signed and acknowledged the execution of the mortgage that she was asked by Mr. Robeson if she executed the same freely, and that she said "No." It appears that the daughter, although not present in the same room, was in the hall very near by, at the time of the execution and acknowledgment of the mortgage by Mrs. Johnson. The daughter's testimony is substantially the same as Mrs. Johnson's. She says that Mr. Lomerson asked her mother to sign the mortgage, and when he said that Mr. Shipman was urging it, and that if father did not sign they would put him in jail, that she said to Mr. Lomerson she did not believe it. She corroborates her mother in saying when her mother was asked if she executed the mortgage freely, she said she did it to keep father out of jail. From her statement it appears that she afterwards inquired of Mr. Shipman and Mr. McMurtrie whether they had had anything to do with this transaction, and was informed by them that they had not. She says that she then went to Mr. Lomerson and urged him to give the property back, and surrender the mortgage. She says that Mr. Robeson was there half an hour, and that her father was present. It is very clear from the testimony in the cause that no proceedings whatever were at that time instituted, or about to be instituted, against Mr. Johnson, the debtor. Mr. Lomerson says, in speaking upon the subject of this interview, that he told Mrs. Johnson and her daughter that Mr. McMurtrie said that, unless she gave a mortgage on her lot, he would see her husband go to jail before he would pay a dollar of this claim. When Mrs. Johnson asked if they could do that, he replied, saying, "Oh yes, they can; that is embezzlement," and gave them an instance of parties being sent to jail, in Newark, for the unlawful use of trust funds. Then Mrs. Johnson said to her daughter, "Why, Carrie, what shall I do?" And Carrie said, "I would not do it." After further conversation he says that he said to Mrs. Johnson, "If you say you will, I will go and get Mr. Robeson to write the mortgage," and he went. Mr. Johnson went with him. He says that this was in the afternoon; that he went to his home, and returned the next morning; and that when he went into the house the daughter, Carrie, said to him that Mr. Robeson was then reading the mortgage over. Mr. Johnson signed it and stepped out of the room, when Mrs. Johnson signed. He again repeats that all he told Mrs. Johnson was what Mr. McMurtrie had said, and says that Mr. McMurtrie told him that. He positively denies making any threats. He says further that there was nothing due at that time to any of the Hornbacker heirs upon their claim, and also says that no proceedings had been begun.

While the principal contention is with respect to the question whether there was in contemplation of law a contract or not which could be enforced, it is due to the defendants to notice another point earnestly presented, which is to the effect that if this mortgage was not obtained by duress or false representations, amounting to a fraud, or under any other circumstances which prevented Mrs. Johnson from acting as a free and voluntary agent, it nevertheless cannot be enforced, because it is without any new consideration. It was given by the wife upon her separate estate to secure the pre-existing debt of the husband, and is therefore void. Reliance is placed upon the law as laid down in Brandt, Sur. § 9, and Jones, Mortg. §§ 615, 1137, and the case of Pratt v. Hedden, 121 Mass. 116, 117, and Ellis v. Clark, 110 Mass. 389, 392. I do not think a new and distinct consideration has been made requisite in such cases in this state. When the following cases are carefully considered, I think it cannot be claimed that they recognize any such doctrine. Merchant v. Thompson, 34 N. J. Eq. 73, and cases cited therein. It seems to me that if the doctrine had been favored in this state it would have been applied to a portion of the claim in the case of Campbell v. Tompkins, 32 N. J. Eq. 170. See, also, Galway v. Fullerton, 17 N. J. Eq. 389, and Armstrong v. Ross, 20 N. J. Eq. 118.

We come now to the consideration of the main question, which is, does enough appear, by way of proof in this case, to satisfy the judicial mind that Mrs. Johnson was so influenced, by what was said by Mr. Lomerson, as to deprive her of her free agency in the making of this mortgage? There is no dispute but that the criminal liability of Mr. Johnson, the husband, was spoken of by Mr. Lomerson. He admits saying that Mr. McMurtrie had said he would see Mr. Johnson in jail before he would pay one dollar of his claim, unless Mrs. Johnson executed this mortgage. He admits further saying that when Mrs. Johnson asked if that could be done that he said it could, and called her attention to the fact that persons had been put in jail for the wrongful use of trust funds. Now, the moneys which it was sought to secure by mortgaging her lot were trust moneys. Mrs. Johnson was apprised of this fact. It was very well understood that he was greatly in arrear in his payments, and was wholly unable to pay out of his own estate. The two bonds and mortgages which had previously been given to secure the same moneys were thought at the time to be inadequate, although that fact had not been practically determined at the time of the execution of this mortgage, by a foreclosure and sale. The conclusion cannot be overcome that, considering her age, and the condition of the health of her husband, she might have some reasonable apprehensions of disaster to him because of his financial embarrassments. The insistment of Mr. Lomerson that he made no threats directly, when he admits saying that he gave the incidents which I have named, affords no excuse or palliation. If the statements which he made to the effect that Mr. Johnson had been guilty of embezzlement, and to the further fact, upon inquiry by Mrs. Johnson, that for such embezzlement he was liable to be...