Central Bank of Frederick v. Copeland

• Decision Date: 03 June 1862
• Citation: 18 Md. 305
• Parties: CENTRAL BANK OF FREDERICK, and others, v. GEORGE W. COPELAND, and MARY ANNE E. COPELAND, his wife.
• Court: Maryland Court of Appeals

18 Md. 305

CENTRAL BANK OF FREDERICK, and others, v. GEORGE W. COPELAND, and MARY ANNE E. COPELAND, his wife.

Court of Appeals of Maryland.

June 3, 1862

The assignee of an interest in a mortgage, cannot claim in any other, or stronger light, than that of his assignor.

A contract obtained by fraud or duress, is void, and a contract to which one assents, through imposition, or overpowering intimidation, will be declared void, when sought to be enforced either in a court of law or equity.

A court of equity will consider all the circumstances, and refuse its aid against one, who, though apparently acting voluntarily yet, in fact, executed the contract with a mind so subdued by harshness, cruelty, extreme distress, or apprehensions, short of legal duress, as to overpower and control the will.

The magistrate who took the acknowledgment of a married woman to a deed, is not, from considerations of public policy, if from no other, a competent witness to contradict, or impeach, his certificate of the acknowledgment.

But the acknowledgment of a feme covert to a deed or mortgage, may be impeached by competent and proper proof, in a case where the mortgagee, or his assignee, is seeking to enforce the mortgage as against the wife.

The obvious purpose of the Act of 1830, ch. 164, in prescribing the form of an acknowledgment for a married woman, was to guard her title to property against the improper efforts of her husband to wrest it from her, and not to bar, from judicial remedy, outrages, by which such an acknowledgment might be extorted.

All the declarations and acts, leading to, and inducing the execution of the deed, by a wife, are inadmissible in evidence as part of the res gestæ , in a case where the wife denies its validity, upon the ground, that she was forced to execute and acknowledge it by threats and menaces of her husband.

Where a wife appears to have been induced to execute and acknowledge a mortgage of her property for her husband's debts, by harshness and threats, and the exercise of unwarrantable authority, so excessive as to subjugate and control the freedom of her will, a court of equity will refuse to enforce it as against her.

The fact, that the mortgagee took no part in procuring the execution of the mortgage by the wife, does not strengthen his right to set it up as valid, nor impair hers to avoid it the acceptance of a mortgage implies adoption, by the mortgagee, of the husband's agency in procuring it.

A mortgage, by husband and wife, of the wife's real estate for the husband's debts, though held void as to the wife, passes the husband's interest as tenant by the curtesy.

A decree pro confesso, passed on an order of publication, which directed publication thereof for three weeks, instead of one month, as required by the Act of 1842 ch. 229, is erroneous, and must be reversed.

APPEAL from the Equity side of the Circuit Court for Frederick county.

A mortgage was executed, February 25th, 1856, by George W. Copeland and Mary Ann E. Copeland, his wife, of a mill and mill-seat, the real estate of the wife, to Thomas and McPherson, to secure a debt for money paid and drafts accepted of $3900, due by the husband to the mortgagees. The acknowledgment and separate examination of the wife, appear duly certified to by the justice, in the usual form prescribed by the Act of 1830, ch. 164.

The mortgagees, subsequently, on the 10th of April 1856, conveyed the mortgaged premises to the Central Bank, by way of mortgage, and on the 29th of January 1857, they, and the bank, filed a bill for the sale of the mortgaged property, asking that the proceeds be applied first, to pay the debt due by the mortgagees to the bank, and the residue to the debt due them under the mortgage. Copeland, the husband, was a nonresident, and on an order of publication directed to be published, and published " once in each of three successive weeks," a decree pro confesso, was passed as against him.

Mrs. Copeland, under leave, filed a separate answer, in which she admits the execution and acknowledgment of the mortgage, but says she knew nothing of its purport save that it was intended to convey her property to secure her husband's debts, that she was confined to her bed at the time, by a very severe spell of sickness, and was ill and much reduced and weakened, and her nervous system shattered by disease, that the paper was presented to her whilst in this state, and she was forced to sign it in the presence of her husband by means of threats and menaces which she was unable to resist, and that she never would have signed it, but for her weak, shattered and helpless situation and the threats used, and she charges that her signature and acknowledgment thereto, were obtained from her by undue means, threats and fraudulent devices, and that the same is void and not binding on her, and was never executed by her according to the requisition of the Act of Assembly.

George W. Hays, the justice who took the acknowledgment, called as a witness for the defendants, says, he believes the husband was present in the room when the mortgage was signed by his wife, when he went into the room she appeared to be asleep and very hard to rouse up, he does not know from what cause; B. A. Cunningham went into the room with him, and tried to rouse her by calling to her, she awoke and made an effort to rise, when her husband came in and assisted her to rise up in bed, she threw out her hand and told him to go away, upon which he stepped aside near the door, and she then wrote her name to the deed; after it was signed, they went out of the room for a moment, and witness remarked it was necessary for him to ask Mrs. Copeland a question apart from her husband, he then took the deed into the room, read the acknowledgment over to her, and requested her response, upon which she hesitated, and asked him what he said? he then read over the acknowledgment to her again and repeated his request, upon which she said, " I suppose I must say yes, and that it is my free will and without force," he thinks she slightly emphasized the word " " must; " when he went into the room he pushed the door to, but did not fasten it, and about the time she made the last response as above, his attention was drawn to the door's moving, and he looked round and saw her husband standing in the door; he received a note in the morning from her husband stating she was sick, and requesting him to come to his house to take her acknowledgment, he was only in the room during the time spoken of above, he thought at the time she was slightly in a stupor, was induced to think so from her conduct, and supposed it proceeded from the medicine she had taken, she appeared to be perfectly rational, and to understand what she was about, there was no one present except that her husband was standing in the door immediately after or at the time she answered, as above stated; does not know whether he was standing there at the time she answered or not, but his impression is, she had made the response before he discovered her husband's presence, he looked round as soon as he discovered a movement of the door.

Dr. Jacob M. Thomas, the attending physician of the wife, was called and attended her professionally on the day the mortgage was executed, between nine and ten o'clock, he found her in bed prostrated, physically, with quick pulse, hot dry skin, and debilitated, and very much disturbed in mind, she was in despair of ever obtaining any happiness or comfort in this life, on account of the course her husband was pursuing towards her, relative to the contemplated transfer of the mill-property to a creditor named McPherson; she seemed distracted in thought and reckless, and very much confused, he learned from herself and her husband, that the cause was the contemplated transfer of the property referred to, and the fear of being compelled to lose her home, he was satisfied she had taken laudanum about that time, from symptoms and confessions of the family; before he left she was laboring under the effects of laudanum, was sleepy and drowsy from the effects of it, and was becoming more so; from her symptoms he estimated the quantity taken to be from two to three drachms, amounting to two or three desert spoonsful, he does not think she was capable, on that occasion, of executing a valid deed or contract, or of transacting any business by the exercise of her own will and judgment, and this opinion of her mental condition he formed from his conversations with her then, and also from his knowledge of her before and at that time, and since, and her attempt to take her own life, and her expressed determination to do so, which she expressed to him then, when he first went into her room; her condition, he believes, resulted partly from the effects of the laudanum she had taken and partly from distress of mind, consequent upon the contemplated transfer of the mill property. She objected to take any remedy, and took it unwillingly, she said she would rather die, and did not wish to live, and believing she was incapable of knowing what was for her own benefit, he administered the remedy himself--an emetic composed of ipecacuanha and tartar; he does not recollect the precise language she used, but his impression is, she told him she took the laudanum for the purpose of taking her life, or of preventing her from having any thing to do with the conveyance of the mill-property.

Elizabeth Copeland, a daughter, was at home at her father's house the morning the mortgage was executed, which was between ten and eleven o'clock; about a week or ten days before, she heard her father tell her mother, that if she did not sign the mortgage, he would destroy the property by fire; he was very angry, and spoke in an abrupt...