Foley v. Greene

• Decision Date: 24 January 1885
• Citation: 14 R.I. 618
• Parties: MARY FOLEY v. WILLIAM H. GREENE et al.
• Court: Rhode Island Supreme Court

14 R.I. 618

MARY FOLEY v. WILLIAM H. GREENE et al.

Supreme Court of Rhode Island.

January 24, 1885

When a son had been guilty of embezzlement, and his mother made a note and executed a mortgage to the employer from whom he had embezzled, and the court was satisfied that the mother's controlling motive was to protect her son from exposure and prosecution:

Held, that she was not a free agent, and that the note and mortgage should be annulled and cancelled.

The maxim, In pari delicto potior est conditio defendentis, does not apply to such a case.

BILL IN EQUITY to annul a note and a mortgage of real estate.

Edwin D. McGuinness, for complainant.

Charles E. Gorman, for respondents.

DURFEE C. J.

The bill shows that on August 1, 1881, the complainant gave the defendant Hanley a mortgage with power of sale on her real estate in Providence, to secure the payment of her promissory note for $1,000, of even date with the mortgage, payable to the order of Hanley one year after date, and that on December 30, 1881, Hanley assigned the mortgage to the defendant Greene. The bill alleges that the note and mortgage were given by the complainant to prevent the criminal prosecution of her son for embezzlement, and prays that the mortgage deed and the assignment thereof may be set aside as void and for other relief. It appears by allegation and evidence that, for several years before July 31, 1881, the complainant's son, John B. Foley, was in the employ of Hanley as clerk or collector, and as such had the custody of large sums of money collected for Hanley, who was a brewer and wholesale liquor dealer, and that in the spring of 1881 Hanley discovered that said John B. Foley had embezzled some $1,500 or more of the money so collected. The bill avers that thereupon it was represented to the complainant, who was a poor and rather ignorant woman, by Hanley and by others, that if she would pay Hanley $500 and give her note and mortgage for $1,000 more, the whole matter of the defalcation would be kept quiet and no criminal charge would be made against her son, and that, being terrified, she furnished the money and gave the note and mortgage to save her son from prosecution and her family from disgrace. We think the averment is substantially proved. It is true there was no direct threat by Hanley, but there was a pressure exerted which had the effect, and was doubtless intended to have the effect, of a threat. Hanley testifies that the note and mortgage were given, not to stifle a prosecution, but as security for advances which he was making to the son to set him up in the liquor business in the hope that he would make enough to repay him the amounts embezzled. The testimony shows that Hanley did make such advances, and undoubtedly if the son, who has failed had succeeded and repaid the advances and the amounts embezzled, Hanley would have regarded the note and mortgage as satisfied. We think, however, that the complainant did not intend the note and mortgage as...