Shattuck v. Watson

• Decision Date: 12 April 1890
• Citation: 13 S.W. 516,53 Ark. 147
• Parties: SHATTUCK v. WATSON
• Court: Arkansas Supreme Court

13 S.W. 516

53 Ark. 147

SHATTUCK v. WATSON

Supreme Court of Arkansas

April 12, 1890

APPEAL from Johnson Circuit Court in Chancery, B. J. BROWN, Special Judge.

Judgment reversed.

McKennon & Reding for appellant.

If appellee voluntarily executed the deeds, without a promise that J. E. Watson would not be prosecuted, for the purpose of securing $ 1,500.00, even though they did not receive any of the money, the deed is binding. Tiedeman on Real Prop., sec 801. The promise not to prosecute is not proven. On conflict of testimony, when a question is settled by notes or deeds the consideration is a compromise, and this is sufficient consideration. 1 Suth., Dam., p. 430; 1 Wait, Ac. & Def sec. 5, p. 95; 1 Pars., Cont., top p. 438 to 444 (6th ed.); 21 Ark. 69; 31 Ark. 222. The proof must be clear and strong of illegal and void consideration, and the burden was on appellee.

A. S. McKennon & J. N. Sarber for appellee.

Review the evidence in detail, and contend that the first deed was a forgery; that J. W. Watson never conspired with his son to defraud appellant; that the second deed was executed upon the sole consideration that J. E. Watson was not to be prosecuted, and was void. 36 Am. Rep., 67; 15 Am. Rep., 189; 20 Am. Rep., 258; Addison on Cont. , sec., 258; 47 Conn. 221; 27 Mich. 293; 42 Iowa 689.

OPINION

HEMINGWAY, J.

The appellant had advertised for sale, and was about to sell, lands of the appellee, under the power contained in two mortgages purporting to have been executed by him and his wife to secure the payment of certain notes therein described.

One mortgage bears date March 15, 1886, and recites that it was given to secure one note given for borrowed money and six notes for the interest thereon. The other is dated December 8, 1886, and was given to secure the same notes, except one interest note which had been previously satisfied. The appellee's son paid it.

The appellee brought this suit to cancel both mortgages and to restrain a sale under them.

The complaint alleges that the prior deed and the notes therein described are forgeries, and that the plaintiff was entirely ignorant of their existence until the day that he executed the latter deed; that appellant's agent visited his residence on the 8th day of December, 1886, for the purpose of obtaining the deed and notes of that date; that Mangum showed him the forged instruments, and told him they had been forged by his son, J. E. Watson, and that he had thereby obtained the amount of money therein indicated; that he, Mangum, only wanted the money secured, and if that was done, the liberty and good name of the son would be saved; but that, if it was not done, he would be vigorously prosecuted and sent to the penitentiary and would lose his standing at the bar and in society; that, in order to prevent the prosecution and ruin of the son, the deed of trust and notes, all of which Mangum brought ready for signature, were executed, and the deed acknowledged before a justice of the peace, who had accompanied Mangum for that purpose.

The appellee testified that the only consideration for the deed and notes was Mangum's promise not to prosecute his son.

The court found that the material averments of the complaint were true, and that the deed and notes executed by appellee on the 8th day of December were void because they were made upon an illegal and invalid consideration; and it decreed that the appellant should surrender for cancellation said deed and notes, and be forever enjoined from selling the land or collecting the notes.

From this judgment the appellant has appealed. He insists that the first mortgage and notes were executed by the appellee and are valid, and that the second mortgage and notes were given as a further security for the first, to remove all doubts as to their validity. He asked no affirmative relief in his answer, and we have not considered what his rights would be if he had done so.

The evidence shows that the appellee did not execute the mortgage of March 15th, and fails to satisfy us that he was a party to a conspiracy to obtain money by means of it. As the deed was forged, the appellee is not estopped to set it up, although the son obtained money upon the faith of it and loaned a portion of it to him, unless he participated in the illegal acts. A sale under the power in that deed would cast a cloud on the appellee's title and was properly restrained.

The question whether the appellee, on the case made by him, is entitled to any relief as against the latter mortgage and notes, is not free from difficulty. His case in effect is that his son had forged a mortgage, on the faith of which he had obtained money from the appellant; that appellant desired to obtain security for that money, and appellee desired to suppress the criminal prosecution of the son; that appellant proposed to appellee, that if he would execute the mortgage and notes tendered, appellant would not prosecute his son; that the proposition was accepted, and the papers executed and received accordingly; that the son was prosecuted through other agencies, and the appellee at no time sought to withdraw from the compact or to recover the securities given in pursuance of it, until the sale was advertised --an interval of over two years--and never released the appellant from his promise except...