Bushnell v. Loomis

Decision Date09 May 1911
PartiesHENRY BUSHNELL et al., Appellants, v. CHARLES A. LOOMIS et al
CourtMissouri Supreme Court

Appeal from Livingston Circuit Court. -- Hon. J. W. Alexander Judge.

Reversed and remanded.

Scott J. Miller and Frank S. Miller for appellants.

(1) If the plaintiff Anna M. Bushnell was importuned by Timbrook to sign the deed of trust, and to induce her to sign he made the statement to her that these papers were to protect her husband against the prosecutions of the Bank of Dawn and to save him of this trouble, then her signature was obtained by duress. Bell v. Campbell, 123 Mo. 1; Earl v Norfolk, 36 N. J., Eq. 192. (2) The plaintiff being influenced by the threats, or covert acts of the defendant is entitled to have the deed of trust cancelled for duress. Hensinger v. Dyer, 147 Mo. 219; Turley v. Edwards, 18 Mo.App. 676. (3) It is admitted in this case that Anna M. Bushnell did not owe the debt. Where a wife who was not the debtor is induced by threats or covert acts to mortgage her property, or to save a relative from criminal prosecution, equity will interfere and cancel the obligation. Morris v. Woodruff, 115 Mass. 233; Benedict v. Rome, 106 Mich. 378; Fry v. Piersol, 166 Mo. 434; Harris v. Carmody, 131 Mass. 51; Preid v. McKee, 42 Ia. 689. (4) Whatever destroys free agency and constrains a person to do what is against his will, what he would not do if left to himself, whether the control be exercised by physical force, meaning insinuations, threats or other species of mental coercion, is undue influence. Curley v. Edwards, 18 Mo.App. 679; Aedie v. Clemon, 26 N.Y. 9. (5) The evidence shows that Anna M. Bushnell was a woman of advanced age, a physical wreck, mentally unbalanced, cognizant of the fact that her husband was to be prosecuted, constantly under the doctor's care, was immediately after and before having hallucinations, tearing her hair, talking incoherently, and on the other side a shrewd business man, assignee of a banking company, the man in control of the business that her husband had handled, seeking to secure a debt to his father owed by the bank, accompanied by the cashier of the defunct institution, who was afterwards prosecuted in the same connection with her husband, acting as notary public, affixing her signature to a deed of trust on her homestead. These facts bring the case correctly within the rule laid down so exhaustively in the case of Bell v. Campbell, 123 Mo. 14.

B. B. Gill & Son and Oscar L. Smith for respondent.

(1) Prior to the statute of 1895, the husband had a vested right in the homestead and could sell or encumber the same subject to the wife's inchoate right of dower, without the wife joining him in the deed, except when she had filed her claim as provided by Sec. 5435, R. S. 1889. Gladney v. Sydnor, 172 Mo. 318; Bouton v. Pippin, 192 Mo. 475; Leete v. State Bank, 115 Mo. 184. (2) The petition does not state that the debt was not honest, and pleading no fraud in the procurement of the new note and deed of trust other than threats, and the plaintiff, Bushnell, testifying there was no duress and no threats used when he executed the note and deed of trust, a court of equity under such circumstances could not relieve him from the payment of his honest obligation and the chancellor was fully justified in finding the issues for the defendant and dissolving the injunction. Fry v. Piersol, 166 Mo. 429. (3) The record shows that Henry Bushnell, plaintiff, acquiesced for many years in the giving of the new note and deed of trust and made voluntary payments on the note, and so far as he is concerned he is now estopped and will not be heard to complain and is not entitled to equitable relief. Hensinger v. Dyer, 147 Mo. 228; Murdock v. Lewis, 26 Mo.App. 234. (4) The petition charges that Mrs. Bushnell at the time she signed the deed of trust was of unsound mind and did not know what she signed; also that she signed the deed of trust to save her husband from criminal prosecution in connection with the failure of the Bank of Dawn. These allegations would seem to be inconsistent and contradictory. This is not a case where the wife mortgaged her own property to secure the debt of her husband to save him from criminal prosecution; she did not even sign the note given by her husband. The only issue as to the wife, coplaintiff with her husband, Henry Bushnell, is: Is she entitled to an order enjoining the sale of her husband's property in which she has but a contingent, inchoate dower interest, and a cancellation of the note and deed of trust asked for in the petition? Under the law and the record in the case she has no vested interest in the property although it is her husband's homestead, and if we concede that she signed the deed of trust under duress and threats made as to her husband in connection with the failure of the Bank of Dawn, or if she was not in her right mind at the time she executed the instrument, the legal effect of her act in either case is the same and her dower would not be released, and if she should survive her husband she could sue to have her dower assigned in the property by making the proper showing. The records shows that Mrs. Bushnell's last spell of sickness was in 1901 or 1902; that since that time her mind has been good. She was informed by her husband three or four years before this trial of the signing of the deed of trust and of the payments on the note by her husband. The record shows that it has been, up to the date of trial, eleven years since Mrs. Bushnell had acknowledged the deed of trust. During all this time the Bushnells have lived on the property and enjoyed the rents and profits, and for four or five years Mrs. Bushnell was fully aware of the fact that she had signed and acknowledged the deed of trust and that her husband had made payments on the debt. It is now certainly too late for her to complain and call upon a court of equity for relief. There is no reason or excuse alleged in the petition why the suit was not brought sooner and before the death of Henry Timbrook, the owner of the note. Barrett v. Davis, 104 Mo. 562; Dexter v. Macdonald, 196 Mo. 399. (5) Evidence to establish fraud and duress in procuring a deed or any other contract must be clear and convincing, leaving no reasonable doubt in the mind of the chancellor, and this class of cases is analogous to that class where a resulting trust is sought to be established by parol evidence. Jackson v. Wood, 88 Mo. 78; Smith v. Smith, 201 Mo. 547; Forrester v. Scoville, 51 Mo. 268.

OPINION

In Banc.

GRAVES J.

This cause has been certified to this court by the Kansas City Court of Appeals, on the ground that title to real estate is involved. The petition is one seeking to cancel and annul a deed of trust given upon the alleged homestead of the plaintiffs who are husband and wife. Defendant, Charles A. Loomis, is the trustee in such deed of trust, and defendants I. M. and George Timbrook are the executors of Henry Timbrook, deceased. In the petition it is charged that on August 26, 1895, and for some time prior thereto, plaintiff Henry Bushnell was the president of the "Bank of Dawn," a Missouri banking corporation; that in June, 1894, said bank borrowed of Henry Timbrook, now deceased, the sum of $ 2,000, and Henry Bushnell signed a note for said sum as surety thereon; that said money was put into and to the credit of said bank by order of the board of directors, and plaintiffs received no part thereof; that afterwards said bank became insolvent and its capital stock impaired; that therefore, I. M. Timbrook, acting for his father, was desirous of having said note secured and importuned plaintiff, Henry Bushnell, to give him a deed of trust upon his homestead; that said I. M. Timbrook, who had made the loan for his father in the first instance, and still acting as the agent of his father, when plaintiff Henry Bushnell refused to execute a deed of trust, then "by insinuations and assertions to this plaintiff, Henry Bushnell, insisted that as an officer of the bank he had violated the law by receiving and permitting to be received, by the cashier thereof, deposits after said bank had become insolvent, and that criminal proceedings would be instituted unless this note should be paid or secured and did inform this plaintiff, Henry Bushnell, that if he would secure this note by giving a deed of trust upon his homestead he would protect him in all his matters as an officer of said bank; and that plaintiff, Henry Bushnell, believing said statement and relying on said promise, executed said note."

As to the plaintiff Henry Bushnell, the petition then further proceeds: "Said plaintiff insisted that he would not be liable for said note, but executed a new note in his own name for the payment of the Bank of Dawn debt to the said Henry Timbrook for the mere purpose of avoiding criminal prosecution by the defendant herein, and that the plaintiff Anna M. Bushnell is the wife of Henry Bushnell, and was on the 26th day of August, 1895, and occupied with him the land above described in this petition as said homestead."

As to the wife, Anna M. Bushnell, it is averred that at the time of the execution of the deed of trust she was sick and had been sick prior thereto and so continued for years thereafter. The deed of trust is of date August 26, 1895.

The representations made to this plaintiff and her mental condition at the time is thus stated in the petition:

"That at the time, to-wit, on the 26th day of August, 1895, the said I. M. Timbrook came to her home and told her that he had some papers that he wanted her to execute, and that unless she did execute them, her husband would get into grave trouble and would be prosecuted in connection with the failure of the Bank of Dawn; and...

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