Harris v. Carmody

Citation131 Mass. 51
CourtUnited States State Supreme Judicial Court of Massachusetts
Decision Date08 April 1881
PartiesArthur Harris v. Lott Carmody & another

Argued November 6, 1880

Essex. Action on the St. of 1879, c. 237, [*] against Lott Carmody and Mary H. Carmody, to recover possession of a parcel of land in West Newbury. Writ dated July 7, 1879. Answer, a general denial.

At the trial in the Superior Court, before Gardner, J., the plaintiff put in evidence a mortgage containing a power of sale, and offered evidence tending to show that the defendant Lott executed the mortgage, and that there had been a breach of the conditions of the mortgage, and a sale under the power to the plaintiff.

The defendants offered evidence tending to show that the mortgage was executed by the defendant Lott under duress.

The plaintiff requested the judge to rule that such evidence would not be admissible under the answer without specially pleading the same; but the judge refused so to rule, and admitted the evidence.

The evidence tended to show that the mortgage was given in settlement of several notes purporting to have been indorsed by Lott, and in settlement of a suit then pending in court on several other notes purporting to have been indorsed by Lott and duly protested, which notes Lott denied that he had indorsed, but contended that they had been forged by one of his sons and his son-in-law, and one of them by a man by the name of Costello, who was the plaintiff's partner at that time and had one fourth interest in the notes and mortgage that the settlement was made just before the case came up for trial; that the parties met, and, after some discussion, the defendant's attorney proposed that Lott should give a note, with security, for $ 1000, the whole amount of the notes being over $ 2000; that the plaintiff expressed satisfaction with the offer, but the defendant objected to paying anything.

There was also evidence tending to show that the mortgage and notes were on interest, payable semiannually, and that the female defendant paid the interest as it became due in six months and in one year after the execution of the mortgage, once in company with her husband. She stated at the trial that she paid it for her son.

The plaintiff offered evidence tending to show that, after a discussion in which it was stated by the plaintiff's attorney to the defendant's attorney, not in the presence of the parties to the suit, that, if the defendant succeeded in his defence, the result would be that his son would be liable to prosecution for forgery and to sentence for ten years to the state prison, the defendant agreed to the settlement, and afterwards the note and mortgage were executed by him.

The defendants offered evidence tending to show that the plaintiff, through his agent and attorneys, threatened Lott that if he did not execute the mortgage and note, his son would be sent to the state prison for ten years, and that he finally gave the privilege to the plaintiff's attorneys to sign his name to the mortgage and note, by reason of the threats made.

The judge instructed the jury, that the statement made by the plaintiff's attorney to the defendant's attorney would not be evidence of duress, and should not be considered by them; and also instructed the jury as to what was duress to which no objection was made; and, further, that if Lott's mind and will were overcome by the threats of the plaintiff's agents, so that the execution of the note and mortgage were extorted from him by the fear of a prosecution of his son for forgery, or of his being sent to the state prison for ten years, and against his will, this would render the note and mortgage invalid, and of no force or effect; that if these threats were made as contended by the defendants, and constituted any part of the consideration of the note and mortgage, this would be sufficient to render them invalid, and of no force against the defendants. The case was submitted to the jury under other instructions not objected to.

The jury found for the defendants, and, upon inquiry by the court, stated that they found that the notes and mortgage were executed by Lott under duress. The plaintiff alleged exceptions to the admission of the evidence objected to, and to the ruling above set forth.

Exceptions overruled.

W. D. Northend & E. F. Stone, for the plaintiff.

P. O'Loughlin & J. M. Raymond, for the defendants.

Morton, J. Colt, Endicott & Field, JJ., absent.

OPINION

Morton, J.

At the trial, the evidence tended to show that the plaintiff sued the male defendant upon several promissory notes purporting to have been indorsed by him; that the defendant set up in that suit that the notes were not indorsed by him, but his pretended signatures were forged by his son; and that a settlement of that suit was made, under which the defendant gave his note for one thousand dollars, secured by a mortgage of real estate.

In the case at bar, the defendant seeks to avoid this mortgage upon the ground that he was induced to execute it by duress. The evidence tended to show that he was induced to execute it by threats of the prosecution and imprisonment of his son. The court instructed the jury as to what would constitute duress without objection being taken; and then ruled in substance that the defendant could avoid the mortgage by proof of duress to his son. The plaintiff excepted to this ruling, and the first question is as to its...

To continue reading

Request your trial
47 cases
  • Lajoie v. Milliken
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 25, 1922
    ...on the part of these defendants connected with the United States Fuel Administration. Wilcox v. Howland, 23 Pick. 167;Harris v. Carmody, 131 Mass. 51, 41 Am. Rep. 188;Fairbanks v. Snow, 145 Mass. 153, 13 N. E. 596,1 Am. St. Rep. 446;Bryant v. Peck & Whipple Co., 154 Mass. 460, 28 N. E. 678;......
  • Houston Ice & Brewing Co. v. Harlan
    • United States
    • Court of Appeals of Texas
    • May 13, 1919
    ...E. 525; Hargreaves v. Korcek, 44 Neb. 660, 62 N. W. 1086; Bane v. Detrick, 52 Ill. 27; Bayley v. Williams, 4 Griff. 638; Harris v. Carmody, 131 Mass. 51, 41 Am. Rep. 188; Bank v. Kusworm, 88 Wis. 188, 59 N. W. 564, 26 L. R. A. 48, 43 Am. St. Rep. 880; Heaton v. Norton Co. Bank, 5 Kan. App. ......
  • Hensinger v. Dyer
    • United States
    • United States State Supreme Court of Missouri
    • December 20, 1898
    ...for the husband's debt, she may have the contract recinded in equity. Adams v. Bank, 116 N.Y. 606; Eadie v. Slimon, 26 N.Y. 9; Harris v. Carmody, 131 Mass. 51; Koehler Wilson, 40 Iowa 183; Benedict v. Roome, 106 Mich. 378; Heaton v. Bank, 47 P. 576; Hargreaves v. Korcek, 62 N.W. 1086; Giddi......
  • Gorringe v. Read
    • United States
    • Supreme Court of Utah
    • January 7, 1901
    ......290;. Osborne v. Williams, 18 Ves. Jr. 379; Gohegan v. Leach & Co., 24 Iowa 509; Beindorff v. Kaufman, . 41 Neb. 824, 60 N.W. 101; Harris v. Carmody, 131. Mass. 51; McMahon v. Smith, 47 Conn. 221; Tapley. v. Tapley, 10 Minn. 360; McCormick Harvesting Machine. Co., 73 Wis. 486, ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT