Berry v. Berry

• Decision Date: 06 February 1897
• Citation: 57 Kan. 691,47 P. 837
• Parties: BERRY v. BERRY et al.
• Court: Kansas Supreme Court

47 P. 837

57 Kan. 691

BERRY v. BERRY et al.

Supreme Court of Kansas

February 6, 1897

Syllabus

The defense of duress is available to the wife in an action to foreclose a mortgage upon the homestead which she was compelled to sign through fear of bodily harm and abandonment by her husband, although it was given to secure the payment of a negotiable promissory note that had been transferred to an innocent holder before maturity.

Error from district court, Nemaha county; J. F. Thompson, Judge.

Action by the Mutual Benefit Life Insurance Company against Rebecca Berry, Joseph Berry, her husband, and others. Judgment for plaintiff, and defendant Rebecca Berry brings error. Reversed.

S. K Woodworth, for plaintiff in error.

F. E Lane and Wells & Wells, for defendant in error.

OPINION

JOHNSTON, J.

On December 2, 1889, Joseph and Rebecca Berry, husband and wife, united in giving to the Guaranty Investment Company a promissory note for $1,800, payable five years after date, and a mortgage securing the payment of the note was signed by them. The mortgage was upon a quarter section of land occupied by them as a homestead, and it was subject and subordinate to another mortgage previously given by them to the Mutual Benefit Life Insurance Company to secure an indebtedness of $1,200. On February 2, 1890, and before the maturity of the note, the Guaranty Investment Company indorsed and transferred the same to the executors of the estate of Charlemagne Tower, deceased, and the mortgage was assigned and delivered with the note, Default was made in the interest payments, and afterwards the insurance company began a foreclosure proceeding, in which the executors of the Tower estate were made parties defendant, who, on July 16, 1892, filed an answer and cross petition, setting up their note and mortgage and asking for judgment against the Berrys, and also that it be declared a lien on the mortgaged premises, subject only to the lien of the insurance company. Joseph Berry did not appear or defend, but Rebecca Berry contested the validity of the mortgage given to the Guaranty Investment Company, alleging that it was signed under duress. She averred that her husband, who was a strong, powerful man of violent temper, threatened to abandon her to her own resources, and also to kill her; and, believing that he was a dangerous man, who would carry out his threats, she was induced to sign the mortgage. She alleged that the land on which the mortgage was given was purchased by her husband as a homestead, and that it was occupied as a homestead before the execution of the mortgage, and had been continuously ever since that time. She did not question her liability upon the note, nor deny that the note and mortgage were assigned as alleged; neither did she make any defense other than that of duress in the execution of the mortgage. On the latter ground she asks that the mortgage be canceled, and held for naught. A demurrer to her answer was sustained, and, she electing to stand on her answer, judgment was rendered against her for $2,625, and for foreclosure of the mortgage, and declaring the judgment a lien on the homestead premises.

Was the mortgage valid and enforceable? If the averments as to duress are true, there was no free will or consent by Rebecca Berry in the execution of the mortgage. As the case stands, we must accept these averments as facts, and, if so regarded, it would seem that Mrs. Berry was induced to sign the mortgage by threats of bodily harm such as might overcome the will of a person of ordinary firmness and courage. In addition to the threats of personal violence, there were threats of separation and abandonment. The property described in the mortgage was a homestead, and could only be alienated by the joint consent of husband and wife. If Mrs. Berry was compelled by force and fear to sign the mortgage, if there was actual duress, she gave no consent, and the mortgage is a nullity. Anderson v. Anderson, 9 Kan. 112; Helm v. Helm, 11 Kan. 19; Howell v. McCrie, 36 Kan. 636, 14 P. 257; Jenkins v. Simmons, 37 Kan. 496, 15 P. 522; Gabbey v. Forgeus, 38 Kan. 62, 15 P. 866; Warden v. Reser, 38 Kan. 87, 16 P. 60. This position would be conceded by the defendant in error if the mortgage stood alone, but as it accompanied and was security for a negotiable promissory note, which was transferred to a bona fide indorsee before maturity, it is contended that the defense of duress is not available. An assignee who obtains a promissory note before maturity for value, and without notice, takes it free from equities. A mortgage executed concurrently with a note, and to secure its payment, is generally held to be an incident of the note, and to partake of its...