Beindorff v. Kaufman

• Decision Date: 19 September 1894
• Citation: 60 N.W. 101,41 Neb. 824
• Parties: BEINDORFF v. KAUFMAN ET AL.
• Court: Nebraska Supreme Court

41 Neb. 824

60 N.W. 101

BEINDORFF

v.KAUFMAN ET AL.

Supreme Court of Nebraska.

Sept. 19, 1894.

Syllabus by the Court.

As bearing upon the defense of duress per minas, interposed against the foreclosure of a mortgage, the actual guilt of a son is not material where his parents have been compelled to make such mortgage to secure his debt by alternative threats to begin, and promises to forbear, a prosecution against him, solely conditioned upon the consent or refusal of his parents to make the mortgage demanded.

Appeal from district court, Douglas county; Hopewell, Judge.

Action by Charles Beindorff against David Kaufman and others to foreclose a mortgage. From a judgment for defendants, plaintiff appeals. Affirmed.Cowin & McHugh and C. W. Haller, for appellant.

L. D. Holmes and Holmes & Macomber, for appellees.

RYAN, C.

This action was for the foreclosure of a mortgage securing the payment of three promissory notes given by David Kaufman and Kaufman Bros. to Charles Beindorff. The mortgage was made by Levi Kaufman and his wife, the parents of the makers of said notes. The defenses interposed by the mortgagors were duress, and that the mortgage was given to compound a felony, alleged to have been committed by David Kaufman. From a decree canceling the aforesaid mortgage an appeal has been taken to this court.

On the trial there was introduced evidence, and in this court argument is directed to the consideration, that Levi Kaufman, with his associates, had, previous to the execution of the mortgage, received transfers of all the property of which David Kaufman and Kaufman Bros. were owners. No averments of the petition, however, warrant an inquiry as to whether or not Levi Kaufman held this property as trustee, and whether or not there were circumstances which rendered it but equitable that he should secure the claim of appellant. The action was one simply for a foreclosure, in which, after several amendments, there were, besides the usual averments in such cases, statements as to an extension of time and the surrender of collaterals obtained by giving the mortgage in question. The finding of the trial court was that there was a sufficient consideration to sustain the mortgage, so that it is unnecessary to consider circumstances other than those tending to prove or disprove that the mortgage was procured by duress, or was given in consideration of compounding felony. On the 24th day of December, 1887, appellant sold his cigar and tobacco store in Omaha to Kaufman Bros., a firm composed of David Kaufman and Isaac Kaufman. As part payment, the notes hereinbefore referred to were executed, each for the sum of $1,000. As security for the payment of these notes, David Kaufman assigned and delivered to appellant certain executory contracts and notes. These contracts had been made by David Kaufman to George M. Winkleman and Thomas Bethel, and provided that upon payment of the entire sum of $2,600, evidenced by the notes of Winkleman and Bethel to David Kaufman, the said Kaufman would convey the property, which was the subject-matter of the contracts, to Winkleman and Bethel. These executory contracts and these notes were those assigned as collateral by David Kaufman to appellant. These executory contracts were never recorded; neither was the assignment of them; and David Kaufman, taking advantage of this want of notice, was able to and did mortgage the land described in the executory contracts aforesaid to John L. Miles on December 29, 1887. When this was discovered by appellant's attorney, he prepared a complaint against David Kaufman upon a criminal charge, under section 28, c. 32, Comp. St., and under section 127 of the Criminal Code. This complaint was sworn to by Otto Beindorff, son of appellant. With this complaint in his possession, and two deeds necessary to cure defects in title to the land upon which a mortgage was desired, appellant's attorney and Otto Beindorff called on David Kaufman. Mr. Haller, the aforesaid attorney, then told David Kaufman that he had come on behalf of appellant with respect to the notes in controversy, and to secure which said Kaufman had given certain real-estate contracts and notes, and charged that, since transferring said contracts, he, the said David Kaufman, had mortgaged...