260 F. 370 (4th Cir. 1919), 1679, National Bank of Savannah v. All

Docket Nº:1679.
Citation:260 F. 370
Party Name:NATIONAL BANK OF SAVANNAH v. ALL.
Case Date:April 04, 1919
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 370

260 F. 370 (4th Cir. 1919)

NATIONAL BANK OF SAVANNAH

v.

ALL.

No. 1679.

United States Court of Appeals, Fourth Circuit.

April 4, 1919

Page 371

Edward S. Elliott, of Savannah, Ga., and E. M. Blythe, of Greenville, S.C. (Jacob Gazan, of Savannah, Ga., and B. F. Martin, of Greenville, S.C., on the brief), for appellant.

Charles Carroll Simms, of Barnwell, S.C. (J. W. Vincent, of Hampton, S.C., on the brief), for appellee.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

PRITCHARD, Circuit Judge.

This case was brought in the court of common pleas of Barnwell county, S.C., and removed to the District Court of the United States for the Eastern District of South Carolina.

T. Gertrude All, on February 9, 1917, filed her bill against Harry W. All, a resident of the state of South Carolina, and the National Bank of Savannah, a corporation organized under the banking laws of the United States and a resident of Savannah, Ga. The appellee was the owner and in possession of the river plantation, containing 2,592 acres, more or less, in Bull Pond township, Barnwell county, S.C. That in August, 1910, plaintiff was approached by her son, John E. All, and an agent of the National Bank of Savannah, and requested to make such bank a mortgage to prevent it from prosecuting her son for a crime under the laws of Georgia, which was refused. That shortly thereafter, on threats being repeated by the agent, and to prevent the prosecution, arrest, and imprisonment of her son, she consented to and did execute and deliver to her son, Harry W. All, a deed conveying the land in question, which was duly recorded in Barnwell county, S.C., in order that Harry W. All might make and deliver to the bank a mortgage on the property to prevent the threatened prosecution. That appellee was not indebted to the said All or to the bank, and that the deed was made solely for the purpose of preventing the bank from carrying out its threat of having John E. All prosecuted, arrested, and imprisoned. That for the same purpose only Harry W. All made a mortgage to the bank for the sum of $15,000, the said Harry W. All not being indebted to the bank. The appellee 'is and has been in possession of these lands, and the defendants are not and have not been. ' It is further alleged that the deed and mortgage are void and should be canceled as a cloud on the title of plaintiff.

The answer of the bank is substantially as follows: It admits that it is a corporation, and it denies all other allegations, except as admitted.

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It admits the indebtedness of John E. All to the bank, and the execution of the deed and mortgage, and that Harry W. All took the proceeds from the mortgage and applied the same to the indebtedness of John E. All to the bank, but expressly denies that the mortgage and deed were procured by threats or representations made by it, or that it ever made any threats whatever. That subsequent to the making of the deed and mortgage the bank brought its action in the District Court for the foreclosure of the mortgage made by H. W. All. That it obtained a decree for sale. That the land was sold, and bought in by the bank and deed was made to it, and it went into possession of the same, and in addition to the decree for the sale of the land it obtained a deficiency judgment against Harry W. All. The plaintiff had full knowledge of the foreclosure proceedings and acquiesced in the same, and is now estopped to maintain an action for title or possession of the bank for the lands.

It is further averred that the cause of action accrued more than six years prior to the commencement of this action, and is therefore barred by the statute of limitations; that the deed and mortgage were executed for the purpose of paying a debt of John E. All, son of the plaintiff, to the bank, and was based on a good and valuable consideration; that if deed was made to suppress prosecution, which defendant denies, plaintiff was a party to the transaction, acquiesced in it for more than six years, the contract has long been executed, she was particeps criminis in it, and the court cannot lend its assistance to her to repudiate this transaction.

Harry W. All filed no answer. The court below entered decree canceling the deed in question, to which plaintiff excepted, and the case now comes here on appeal.

The first question that arises in this case is as to whether the appellee has by a preponderance of the evidence established the allegations of the complaint; the gist of the complaint being that she acted under duress in signing and executing the deed in question. Of course, there is the question as to the consideration moving her at the time she made the deed; but the first and most important question is as to whether she executed the deed of her own free will and volition. We will briefly review the evidence in order that we may properly determine this phase of the question.

The first witness offered by the appellee was her husband, J. H. C. All, who said, among other things, that he had collected the rents for the current year, and every year that his wife had owned it; had paid all taxes except last year; that his son got into financial difficulties in Savannah, and that Mr. Gazan, attorney for the bank, had gone to his residence to see him; that he said he came there by instruction of the bank; that the bank was going to prosecute his son for obtaining money under false pretenses; that he communicated this fact to his wife, and told her that the son would be prosecuted if something was not done; that he suggested she would have to make title to the bank to save the boy from the chain gang or the penitentiary; that he obtained this information through Mr. Gazan and from what his boy wrote him.

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On cross-examination he said that Mr. Gazan brought 'a lot of papers' for her to sign, but he would not let her sign them, most of them. 'Gazan did not state that the bank only wanted me to pay the money due by J. H. C. All & Son. We met in Mr. Patterson's office at Barnwell. The understanding was she was to keep the boy out of trouble by parting with the real estate. I was just trying to see that she didn't get tangled up. I got a lawyer to help her. ' He also said that the national bank had never brought suit against him, and that John All did not make representation to her (meaning his wife) about signing the deed; further that the deed was prepared by her lawyer and carried back to her, and she signed it at Allendale and gave it to H. W. All.

Percy All, a son of the appellee, testified, among other things, that Mr. Gazan and the cashier of the national bank sent for him in reference to the transaction of John E. All with that bank, and when he arrived they told him that they intended to institute criminal proceedings against John E. All, as he was short a considerable sum of money, and the directors had instructed them (Garrard & Gazan) to do so, and that he wrote his father about it. He also testified that this conversation occurred in the office of Garrard & Gazan; that in addition to Garrard and Gazan, Mr. Bloodworth, the cashier of the bank, and also Mr. Hughes, were present. He said they told him that John E. All was short a considerable amount of money, and that they intended to prosecute him criminally immediately, unless something was done; that he wrote his father of the matter; that he was again called to the bank, and that, from the tone of the letter received from his father, he suggested that Mr. Gazan go to Allendale and see his father; that the whole effort on the part of those gentlemen was to secure payment by threatening prosecution, and that that was their purpose in sending for him.

Harry W. All, a son of Mrs. T. Gertrude All, said, among other things, that no consideration passed to him for the execution of the mortgage to the bank; that he signed the notes also, but was not indebted to the bank, and the mortgage was made out solely to prevent the bank from prosecuting his brother; that the mortgage was made to him, and he took the same to Savannah to 'fix it up,' as the bank wanted it with the intention of keeping his brother out of jail. He testified on cross-examination as follows:

'Q. Mr. All, when you delivered the mortgage to the bank that day, didn't the bank execute to you a check for $15,000, and didn't you then and there indorse that check to the bank, to be applied to this debt of J. H. C. All & Son? A. Gave me a check for $15,000?

'Q. Yes. A. No; I don't remember about that. I signed some notes.

'Q. Will you swear that they didn't deliver to you the check? A. No; I don't swear; it might have been among the notes.'

Mrs. T. Gertrude All testified that she was the owner of the land in question and had executed the deed to her son Harry W. All, so that he could go down and settle with the bank, and thus keep her son out of trouble. She testified that she could not recall the conversation Mr. Gazan had in the parlor at Allendale; that her husband told

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her that, unless the deed was made, her son John E. All would be prosecuted and sent to prison for a criminal offense; that she did not make the deed for a money consideration, but made it to keep her son out of jail and trouble; and that if it had not been for the threats of Mr. Gazan, as agent for the bank, she would not have made the deed.

J. H. C. All, being recalled, said that the reason they did not bring the action sooner was that the bank undertook to foreclose the mortgage, and that his son was opposing it on the ground that 'it was settled or paid, and until that was settled we did not bring this suit earlier. I was looking after the matter for Mrs. All.'

This constitutes the evidence relied upon by the appellee to sustain...

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