Hensinger v. Dyer
| Decision Date | 20 December 1898 |
| Citation | 48 S.W. 912,147 Mo. 219 |
| Parties | Hensinger et al., Appellants, v. Dyer et al |
| Court | Missouri Supreme Court |
Appeal from Pettis Circuit Court. -- Hon. George F. Longan, Judge.
Affirmed in part; reversed in part (with directions).
John Cashman and G. W. Barnett for appellants.
(1) Under the rule announced and adopted by this court in Bell v. Campbell, 123 Mo. 1, the threats of Dyer to prosecute plaintiffs constituted duress. The rule adopted in that case is contained in these words: "The circumstances of this case clearly bring it within the operation of the principle that condemns and avoids a contract entered into where the obligor is not a free agent where he stands in vinculis; where he is not equal to the task of protecting himself; where the circumstances which surround him at the time are of such extreme necessity or of distress that his will is overcome, his free agency destroyed by some oppression or fraudulent advantage or imposition incident to the transaction; in such case a court of equity will protect him by setting aside the contract thus made." Fout v. Geraldine, 64 Mo.App. 165; Turley v. Edwards, 18 Mo.App. 676; Town of Sharon v. Gayer, 46 Conn. 189; Foley v. Green, 14 R. I. 618; Jordan v. Elliott, 15 Cent. L. J. 232; Meech v. Lee, 46 N.W. 383; Moore v Woodworth, 155 Mass. 233; Bryant v. Peck and Whipple Co., 154 Mass. 460; Taylor v. Jaques, 106 Mass 291; James v. Roberts, 18 Ohio 548; Reynolds v. Copeland, 71 Ind. 422; Snyder v. Willey, 33 Mich. 483; Buck v. Bank, 27 Mich. 293; Beindorff v. Kaufman, 41 Neb. 824; Hullhorst v. Scharner, 15 Neb. 57; McCormick H. M. Co. v. Hamilton, 73 Wis. 486; Bennett v. Healey, 6 Minn. 158; Love v. State, 3 S.E. 893; Springfield Fire & M. Co. v. Hull, 25 L. R. A. 37; Ins. Co. v. Kirkpatrick, 20 So. Rep. 651. (2) A wife may avoid a contract induced and obtained by threats of imprisonment of her husband and it is immaterial whether the threat is of lawful or unlawful imprisonment, and where a wife is induced by a threat of her husband's arrest, to pay a debt due from him, to defendant, or to give security 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 v. Wilson, 40 Iowa 183; Benedict v. Roome, 106 Mich. 378; Heaton v. Bank, 47 P. 576; Hargreaves v. Korcek, 62 N.W. 1086; Giddings v. Bank, 74 N.W. 21. (3) There can be no ratification by payment of interest or part of the debt. McCormick Harv. M. Co. v. Miller, 74 N.W. 1061; Bell v. Campbell, 123 Mo. 1; Buck v. Bank, 27 Mich. 293; Beindorff v. Kaufman, 41 Neb. 824. (4) An agreement, either expressed or implied, to abstain from a prosecution, or to dismiss a prosecution already begun, taints the whole transaction and avoids the contract. "You shall not stipulate for iniquity." Brick Co. v. Cook, 44 Mo. 29; Sumner v. Summers, 54 Mo. 340; Taylor v. Jaques, 106 Mass. 291; McCormick Harv. M. Co. v. Miller, 74 N.W. 1061. (5) Dyer having threatened to prosecute, and after having obtained the security, then abandoned his purpose to prosecute; he is presumed to have used the threat for the sole purpose of obtaining the deed, and not with a view of aiding in the administration of public justice. Snyder v. Willey, 33 Mich. 483; Buck v. Bank, 27 Mich. 293; Ins. Co. v. Hull, 25 L. R. A. 37; Heaton v. Bank, 47 P. 576; Morse v. Woodworth, 155 Mass. 233; Bryant v. Peck & Whipple Co., 154 Mass. 460; Town of Sharon v. Gager, 46 Conn. 189.
Sangree & Lamm for respondents.
(1) The prima facie case made by the acknowledgment in favor of the voluntary and valid execution of the deed in question, can only be overthrown by clear proof and unequivocal and cogent testimony. Barnett v. Davis, 104 Mo. 549; Clark v. Edwards, 75 Mo. 87; Rust v. Goff, 94 Mo. 511; Mather v. Jarel, 33 F. 366; Biggers v. Building Co., 9 Mo.App. 210; Bohan v. Casey, 5 Mo.App. 101; Ins. Co. v. Nelson, 103 U.S. 548; Young v. Duval, 109 U.S. 573. (2) In order to divest an estate already vested by deed, the evidence ought to be so clear, strong and unequivocal, as to leave no room for a reasonable doubt in the mind of the chancellor. Atkinson v. Henry, 80 Mo. 157, Jackson v. Wood, 88 Mo. 76; Forrester v. Scoville, 51 Mo. 268; Johnson v. Quarles, 46 Mo. 423; Dallam v. Renshaw, 26 Mo. 533; Davis v. Fox, 59 Mo. 125. (3) This is not a case whose salient characteristics are ignorance, illiterateness, old age, or mental decrepitude or confidential relations; nor is it a case of no consideration passing to the grantors in the deed and payors of the note; nor is it a case of undue importunity, suddenness and surprise, and no chance to consult counsel such as Bell v. Campbell, 123 Mo. 1, and Turley v. Edwards, 18 Mo.App. 676. Nor is it a case where the debts secured were the antecedent debts of an insolvent husband, as in Sharpe v. McPike, 62 Mo. 300. (4) Actual, illegal intimidation must be clearly shown, and it must be of such sort as to control and master the will power of the grantors. Threats of legal proceedings are not "duress." Claflin v. McDonough, 33 Mo. 412; Davis v. Luster, 64 Mo. 43; Wilkerson v. Hood, 65 Mo.App. 491; Buchanan v. Sahlien, 9 Mo.App. 552; Dausch v. Crane, 109 Mo. 323; Holmes v. Hill, 19 Mo. 159; Wolfe v. Marshall, 52 Mo. 171; Miller v. Miller, 68 Pa. St. 486; Emmons v. Scudder, 115 Mass. 367; Hockly v. Headly, 45 Mich. 569. (5) Appellants' long acquiescence in the contract, the failure to complain, the turning over of collateral to secure back interest in February, 1895, eighteen months after the alleged duress, the friendly feeling and relations after the pretended imposition and intimidation, weigh heavily against their present contention. Murdock v. Lewis, 26 Mo.App. 234.
This is a suit in equity by plaintiffs who are husband and wife against Dyer as beneficiary, and Porter as trustee, in a deed of trust executed by plaintiffs, to enjoin a sale thereunder then about to be made, and to have declared void and of no effect the note whose payment is secured by the deed of trust upon the land of the plaintiff Sarah Hensinger and described therein, upon the ground that their execution and delivery to Dyer were obtained by duress.
A temporary injunction was granted, and after answer filed by defendants, a motion was filed by them to dissolve the injunction, which motion and the case upon its merits were heard together, whereupon the temporary injunction was dissolved, the bill dismissed, and judgment rendered in favor of defendants for costs.
Plaintiffs appeal.
The note calls for $ 1,399, is dated August 15, 1893, due six months after date, and bears interest at the rate of six per cent per annum. It was credited by $ 199, on the day of its execution.
The deed of trust to secure the payment of the note was executed on the twenty-third day of August, 1893, and filed for record in the recorder's office of Pettis county, where the land lies, the next day thereafter.
The defendant, Porter, was at the time the land was advertised for sale under the deed of trust, the acting sheriff of Pettis county, and as such had advertised to sell it on the twentieth day of July, 1895. The tract contains about seventy-two acres and belongs to the plaintiff Sarah Hensinger.
In 1886, plaintiffs rented from defendant Dyer a farm located in Pettis county, which they occupied as his tenants for about seven years, executing each year their note for the rent.
Most of these notes were secured by chattel mortgages on stock and crops raised on the farm; and the note in question was given in settlement of all claims between the plaintiffs and Dyer. M. H. Hensinger was authorized by Dyer to sell the property conveyed by these mortgages which he frequently did, paying the money received from such sales to Dyer. The deed of trust involved in this litigation was subject to a prior deed of trust on the same land for the sum of $ 1,100 in favor of one Inhauser.
Before the execution of the deed of trust in question, plaintiffs' lease was terminated, and they had moved from defendant's farm. During the last year that they occupied it they raised some five hundred bushels of corn on it, upon which Dyer claimed to have a lien under the statute.
The corn was sold by Hensinger and the proceeds applied to his own use, but he claims that he paid Dyer the value of the corn from the proceeds of the sale of other property upon which he had no lien.
Dyer threatened to institute criminal proceedings against Hensinger for embezzling the corn, if he and his wife did not execute to him their note for its value, secured by deed of trust upon the land of Mrs. Hensinger, and they testified that because of this threat, and in fear of such prosecution, they did execute the note and deed of trust in question. At the time of their execution, however, there was a settlement between plaintiffs and Dyer of their unsettled business transactions, and it was found that plaintiffs were indebted to Dyer in the sum of $ 1,399, for which they executed their note. Thereafter, upon a compromise of some of their business matters which were not included in the settlement, Dyer credited plaintiffs with $ 199 on said note as of the day upon which it bears date.
Shortly before the papers were executed Dyer went to plaintiffs' residence some seven miles from Sedalia, taking with him J. M. Byler, a notary public, to take the acknowledgment of the deed of trust in the event that he succeeded in getting plaintiffs to execute one, and this was one of the occasions upon which Dyer threatened to prosecute M. H. Hensinger, if the note and deed of trust were not executed.
Mrs Hensinger had refused all the time,...
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