"This cause has been certified to this court by the Kansas City Court of Appeals on the ground that title to real estate is involved. The petition is one seeking to cancel and annul a deed of trust given upon the alleged homestead of the plaintiffs, who are husband and wife. Defendant Charles A. Loomis is the trustee in such deed of trust, and defendants I. M. and George Timbrook are the executors of Henry Timbrook, deceased. In the petition it is charged that on August 26, 1895, and for some time prior thereto, plaintiff Henry Bushnell was the president of the `Bank of Dawn,' a Missouri banking corporation; that in June, 1894, said bank borrowed of Henry Timbrook, now deceased, the sum of $2,000, and Henry Bushnell signed a note for said sum as surety thereon; that said money was put into and to the credit of said bank by order of the board of directors, and plaintiffs received no part thereof; that afterward said bank became insolvent and its capital stock impaired; that therefore I. M. Timbrook, acting for his father, was desirous of having said note secured, and importuned plaintiff Henry Bushnell to give him a deed of trust upon his homestead; that said I. M. Timbrook, who had made the loan for his father in the first instance, and still acting as the agent of his father, when plaintiff Henry Bushnell refused to execute a deed of trust, then `by insinuations and assertions to this plaintiff, Henry Bushnell, insisted that as an officer of the bank he had violated the law by receiving and permitting to be received, by the cashier thereof, deposits after said bank had become insolvent, and that criminal proceedings would be instituted unless this note should be paid or secured, and did inform this plaintiff, Henry Bushnell, that if he would secure this note by giving a deed of trust upon his homestead that he would protect him in all his matters as an officer of said bank; and that plaintiff Henry Bushnell, believing said statement and relying on said promise, executed said note.'
"As to the plaintiff Henry Bushnell, the petition then further proceeds: `Said plaintiff insisted that he would not be liable for said note, but executed a new note in his own name for the payment of the Bank of Dawn debt to the said Henry Timbrook for the mere purpose of avoiding criminal prosecution by the defendant herein, and that the plaintiff Anna M. Bushnell is the wife of Henry Bushnell, and was on the 26th day of August, 1895, and occupied with him the land above described in this petition as said homestead.'
"As to the wife, Anna M. Bushnell, it is averred that at the time of the execution of the deed of trust that she was sick and had been sick prior thereto, and so continued for years thereafter. The deed of trust is of date August 26, 1895. The representations made to this plaintiff and her mental condition at the time is thus stated in the petition: `That at the time, to wit, on the 26th day of August, 1895, the said I. M. Timbrook came to her home and told her that he had some papers that he wanted her to execute, and that, unless she did execute them, her
husband would get into grave trouble, and would be prosecuted in connection with the failure of the Bank of Dawn, and that, if she would sign the papers he had, this would avoid any trouble for her husband, and that the papers would not affect any of her property rights, and that, if by signing these papers at any time she would be in danger of losing her homestead, he himself would take these papers and tear them up and release the obligation signed by her, and by signing them she would save her husband from being prosecuted and doubtless much and serious trouble in connection with the failure of the Bank of Dawn, and assured her that he would hold these papers himself, and, if at any time after the trouble blew over she would be in danger of losing her homestead, he would tear these papers up, and release whatever obligation she would be under by signing them; that, upon this assurance from the said I. M. Timbrook, she signed the papers without reading the same, not knowing at the time, nor was she able to understand, the import and the meaning of the same; and that she signed the same relying upon the promise of the said defendant, and for the purpose of securing her husband's safety.
"Plaintiff Anna M. Bushnell states that at the time, to wit, on the 26th day of August, 1895, and for some months prior thereto, she had mental trouble, and was not in such mental condition that she could know with any reasonable degree of certainty what business she was transacting, that her mind was in such condition affected by sickness that she was unable to transact any business whatever, and that her mind was in such condition that she would not know the effect and did not know the effect of a deed of trust securing a promissory note, and at the time of signing of said deed of trust from the effect of long illness her mind was affected, so that she could not comprehend what she was doing, except a great fear for her husband's safety; that while in such condition she executed a deed of trust to secure a note of $2,000, executed by Henry Bushnell, made on the 26th day of August, 1895, to Charles A. Loomis, trustee for Henry Timbrook, on all of the S. E. ¼ of the N. W. ¼ of section 18, township 56, range 24, Livingston county, Mo.; and that said deed of trust was made before C. D. Hurthal, notary of public, and filed for record on the 27th day of August, 1895, in the recorder's office of Livingston county, Mo., and duly recorded in Book 91, Deed of Trust Record, p. 311, a certified copy of which deed of trust is herewith marked `Exhibit A.' Plaintiff Anna M. Bushnell states that this condition of her mind remained and existed until on or about the ______ day of September, 1902, and that during all that time the incident of having executed this deed of trust further than the fact that she had executed some paper to save her husband from trouble she did not know. As stated, the court was asked to annul and cancel such deed of trust, and, further, to restrain a threatened sale by the trustee aforesaid.
"In the answer of the defendants are some general admissions, and then follow affirmative defenses. Among the latter the defendants first plead that plaintiff Henry Bushnell owed Henry Timbrook a promissory note of $2,000; that on August 26th he took up such note, and executed in lieu thereof a new note for a like sum, being the note in controversy; that said new note was secured by a deed of trust as described in plaintiffs' petition; that some five payments had been made by said Bushnell at divers dates from August, 1900, to September, 1904, such payments aggregating in all $680; that such payments were voluntary, and made without protest and without claim that the said note was not in fact and in law the note of the said Henry Bushnell, and that, by reason of the long acquiescence therein, the said Bushnell is now estopped from denying his said obligation. The answer then specifically denies that the note was procured in the manner and by the means stated in the petition. This is the answer as to Henry Bushnell.
"Referring to the charges of the petition with reference to the plaintiff Anna M. Bushnell, there is a specific denial as to each charge made therein. The answer then concludes with a general denial of all matters not specifically admitted. Reply was a general denial. Judgment went for the defendants. The temporary injunction was dissolved, and the bill of plaintiffs dismissed, with costs awarded against them. From such judgment, plaintiffs have appealed.
"1. Upon the facts this case is divided into two parts. In fact, the petition practically so divides it. The first allegations in the petition relate to plaintiff Henry Bushnell, and the latter portion of the petition to his wife, Anna M. Bushnell. The petition charges that the money involved in the transaction was borrowed by the Bank of Dawn, but the evidence shows that whilst in fact the Bank of Dawn was the principal upon the note, and plaintiff Henry Bushnell its president was the surety, yet the money in the first instance was borrowed for the use and benefit of Henry Bushnell,...
