Hargreaves v. Korcek

• Decision Date: 05 April 1895
• Docket Number: 5878
• Citation: 62 N.W. 1086,44 Neb. 660
• Parties: ALFRED E. HARGREAVES ET AL., APPELLANTS, v. LUDWIG KORCEK ET AL., APPELLEES
• Court: Nebraska Supreme Court

62 N.W. 1086

44 Neb. 660

ALFRED E. HARGREAVES ET AL., APPELLANTS, v. LUDWIG KORCEK ET AL., APPELLEES

No. 5878

Supreme Court of Nebraska

April 5, 1895

APPEAL from the district court of Buffalo county. Heard below before HOLCOMB, J.

AFFIRMED.

Tibbets Morey & Ferris, for appellants:

To support the contention that the mortgage was not executed under duress the following cases were cited: Mundy v Whittemore, 15 Neb. 647; Wilson Sewing Machine Co v. Curry, 25 N.E. [Ind.], 896; Sornborger v. Sanford, 34 Neb. 499; Harmon v. Harmon, 61 Me. 231; Plant v. Gunn, 2 Woods [U. S.], 372; Thorn v. Pinkham, 24 A. [Me.], 718; Mascola v. Montesanto, 61 Conn. 50; Hackley v. Headley, 45 Mich. 569; Griffith v. Sitgreaves, 90 Pa. 161; Green v. Scranage, 19 Iowa 461; Humphrey v. Humphrey, 79 N. Car., 396; Stouffer v. Latshaw, 2 Watts [Pa.], 167; Alexander v. Pierce, 10 N. H., 494; Meek v. Atkinson, 1 Bailey [S. Car.], 84; Compton v. Bunker Hill Bank, 96 Ill. 301.

Oldham & Murphy, contra

The efforts to convince appellees that Mr. Korcek had committed a crime, and the threats of sending him to the penitentiary for a term of years if the debt was not secured by a mortgage on the homestead, constitute duress, and vitiate the mortgage. (Meech v. Lee, 46 N.W. [Mich.], 383; Lomerson v. Johnson, 13 A. [N.J.], 11; McCormick Harvesting Machine Co. v. Hamilton, 41 N.W. [Wis.], 727; Strang v. Peterson, 10 N.Y.S. 139; Miller v. Bryden, 34 Mo. App., 602; Adams v. Irving Nat. Bank, 116 N.Y. 606; Morrison v. Faulkner, 15 S.W. [Tex.], 797; Schultz v. Catlin, 47 N.W. [Wis.], 946; Mayer v. Oldham, 32 Ill.App. 233; Winfield Nat. Bank v. Croco, 26 P. [Kas.], 939; Morrill v. Nightingale, 28 P. [Cal.], 1068; Bryant v. Peck, 28 N. E. Rep, [Mass.], 678; Morse v. Woodworth, 29 N.E. [Mass.], 525.

Dryden & Main, also for appellees.

HARRISON, J. RAGAN, C., not sitting.

OPINION

A statement of the case appears in the opinion.

HARRISON, J.

The appellants commenced an action in the district court of Buffalo county against the appellees to foreclose a mortgage on real estate, alleging, in substance, that on the 11th day of July, 1889, appellants obtained a judgment against Ludwig Korcek in said district court for the sum of $ 1,093.48, and on the 12th day of July, 1889, Ludwig Korcek and his wife Mary, for the purpose of securing the payment of the indebtedness evidenced by the judgment, executed and delivered to appellants, a mortgage deed conveying to them the south half of the southwest quarter of section 10 township 9 north, of range 15 west, in Buffalo county, Nebraska; that by the terms of the mortgage the judgment was to be paid July 10, 1890. There was an allegation of default in the condition of the mortgage in regard to payment. It was also pleaded that certain persons and firms had, or claimed to have, judgment liens upon the premises described in the mortgage, "And plaintiffs allege that such judgments are not liens upon the above described premises, for the reason that said Ludwig Korcek is a married man and the head of a family, and with his said wife, Mary Korcek, occupies and holds said premises as their homestead, and the same are of a less value than $ 2,000." The petition closed with a prayer for foreclosure, deficiency judgment, etc. To this petition various judgment and other creditors of Ludwig Korcek filed answer, each setting up a claim and praying such relief as was deemed appropriate in the particular instance, by the pleader. It appears that Ludwig Korcek had been in mercantile business in Kearney, Nebraska, for a number of years and just prior to the execution of the mortgage, the basis of this action, disposed of his stock of merchandise and the business; that the judgment recovered by appellants against Ludwig Korcek which the mortgage was given to secure was for the amount of an account in their favor for merchandise sold to him. Korcek's sale of his stock of merchandise was, he alleges, used by appellants as the foundation for the threats made by them to obtain the execution of the mortgage in suit in the case at bar. This statement will serve to explain the reference in the portion of the answer of appellees quoted herein to the sale of the stock of merchandise. The Korceks filed separate answers and subsequently filed an answer, in which they joined, and which was treated as an amended answer. In this they admitted the indebtedness of Ludwig Korcek to the appellants in some amount, the rendition of judgment, the execution of the mortgage, that appellees were husband and wife, the homestead character of the premises described in the petition and their residence thereon, but denied that Mary Korcek was indebted to appellants in any sum or in any manner. They further answered as follows:

"That on or about the 12th day of July, 1889, * * * a practicing lawyer of the city of Lincoln, Nebraska, and the then attorney of the plaintiffs aforesaid, together with a salesman in the employ of the plaintiffs aforesaid, visited the said Ludwig and Mary Korcek for the purpose of obtaining security on said account; that the said attorney and said salesman, for the purpose of inducing these answering defendants to execute said mortgage as aforesaid, falsely and fraudulently represented to the said Ludwig and Mary Korcek that the said Ludwig Korcek had unlawfully, fraudulently, and feloniously sold and disposed of said stock of merchandise and concealed the same, or a part thereof, for the purpose of defrauding his creditors, and the plaintiffs in particular, and that unless the said Ludwig and Mary Korcek executed and acknowledged to the plaintiffs a mortgage upon the premises hereinbefore described, to secure the said claim, that the said Ludwig Korcek would be arrested, prosecuted, and imprisoned in the penitentiary of the state of Nebraska; that said plaintiffs, by their said agents as aforesaid, represented to the said Ludwig and Mary Korcek that a warrant had already been issued for the arrest of the said Ludwig Korcek for said crime as aforesaid, and that the same was in the possession of the sheriff of Buffalo county and would be served, and the said Ludwig Korcek immediately taken to jail, unless said mortgage was executed upon said premises as aforesaid. * * *

"8. These answering defendants allege that it is wholly untrue that the said Ludwig Korcek had been guilty of disposing of said property for the purpose of cheating and defrauding his creditors and deny that he had been guilty of any criminal offenses whatever, and the said defendant Mary Korcek alleges that at the time the said mortgage was executed she was wholly ignorant of the facts as to the alleged criminal offenses except as advised by the said attorney and the said salesman, agents of the plaintiffs as aforesaid, and was wholly ignorant of the law governing the same; that she is of German nationality and understands the English language very imperfectly, and that by reason thereof, and by reason of said false and fraudulent representations of the agents of the plaintiff as aforesaid, and being, as aforesaid, entirely ignorant of the facts and of the law, the said Mary Korcek and the said Ludwig Korcek were in great fear of immediate arrest and incarceration of the said Ludwig Korcek, husband of the said Mary Korcek, defendant as aforesaid, and by reason of the said threats and undue influence, and while thus agitated and put in fear by reason of the said fraudulent statements and threats and misrepresentations of the said plaintiffs as aforesaid, and acting under fear of said imprisonment, these answering defendants signed said pretended mortgage upon their homestead without consideration, and not otherwise."

There were some other allegations contained in the answer, but we need not consider them here. The prayer of the answer was that the mortgage be declared null and void and canceled of record. The reply filed by appellants was a general denial of all new matter contained in the amended answer. A trial to the court of the issues between the appellants and the Korceks resulted in a finding in favor of the Korceks and a decree declaring the mortgage null and void and ordering its cancellation, and plaintiffs in the district court have appealed to this court.

There was a sharp and decided conflict in the testimony adduced with reference to what was said by the various persons who were present at the home of the Korceks on the day when the mortgage to appellants was executed, but there was ample evidence to support the finding of the trial court, and following the well established rule of this court, the finding will not be disturbed. It remains then to determine whether the Korceks were under duress at the time they signed and delivered the mortgage. The parties who represented appellants drove from Kearney to Korcek's farm, where they arrived about 9 or 10 o'clock in the forenoon and remained until 3 or 4 in the afternoon, being the greater portion of the time they were there engaged in endeavoring to obtain the execution of the mortgage, and which they finally accomplished. They took with them from Kearney a law book, the statutes, and--now being guided in our statements mainly by the evidence which must have been followed by the trial court to reach the conclusion it did--it appears that soon after they reached the farm some law was read from this book to the Korceks, and the husband was informed that he had committed a crime and unless he signed the mortgage he would go to the penitentiary, and in Korcek's testimony we find the following:

He said he had a warrant and the sheriff is over across the creek, and if I did not sign the security mortgage the sheriff would take me right away from the place.

Q. Take you to jail?

A. He would take me right away; yes,...