Commercial Nat. Bank of Cleveland v. Wheelock
| Decision Date | 23 April 1895 |
| Citation | 40 N.E. 636,52 Ohio St. 534 |
| Parties | COMMERCIAL NAT. BANK OF CLEVELAND v. WHEELOCK. |
| Court | Ohio Supreme Court |
Error to circuit court, Cuyahoga county.
Action by Mrs. Wheelock against the Commercial National Bank of Cleveland. There was judgment for plaintiff, and defendant brings error. Reversed.
On April 8, 1885, the defendant in error, Mrs. Wheelock, filed her petition in the common pleas court of Cuyahoga county alleging in substance that on or about October 13, 1883, the plaintiff in error, the Commercial National Bank of Cleveland, Ohio, was a creditor of the Cleveland Chair Company, a corporation, in the sum of not less than $15,000.00; that her husband, C. S. Wheelock, and his father and brother, were stockholders, directors, and officers in said chair company; that it was then claimed by the bank that about $3,600 of said indebtedness was evidenced by forged acceptances of the drafts of said chair company, and that the forgeries had been committed by her husband and his father and brother, and caused them to be arrested and indictments to be presented against them on account of such forgeries that this was done with the fraudulent intent of alarming and intimidating her and the defendants in said prosecutions, and of coercing her into the payment of said entire indebtedness of $15,000; that she thereupon became greatly alarmed intimidated, and bewildered; that in November, or the early part of December, 1883, the bank, knowing that the chair company and all of its stockholders were insolvent, informed the plaintiff and threatened her that unless certain real estate described in the petition, and owned by her, and alleged to be of the value of $10,000, were conveyed to it towards the payment of said indebtedness, said indictments would be prosecuted; that while she was overcome by fear, and her free agency destroyed, and her mind bewildered by said threats, she executed to the bank a deed for said real estate, and her husband, being likewise overcome and coerced by such threats, joined her in the execution of said deed. She avers that, by reason of the matters alleged, said deed is null and void; that she is the owner in fee simple of said lands, is entitled to the possession thereof, and the bank unlawfully keeps her out of possession. A second cause of action is for rents and profits. She prays for a judgment against the defendant for possession of the premises, and for said rents and profits. In its first defense the bank admits its corporate character, the indebtedness to it of the chair company, the conveyance of the real estate to it December 19 1883, and denies all other allegations of the petition. In its second defense the bank alleges that the facts which led to the indictment of the Wheelocks were submitted to the grand jury by the public prosecutor in the course of his duty; that an attorney representing them and the plaintiff called upon it, and proposed that it should accept said real estate and some other property in satisfaction of its claim against the chair company; that it accepted said offer, and, upon receipt of said deed and the other property referred to, surrendered all the evidences of said indebtedness to it. Replying, Mrs. Wheelock denies that said attorney was employed by her, or in any way authorized to represent her. When the cause came on for trial in the court of common pleas, Mrs. Wheelock demanded that it should be tried by a jury, which demand was overruled by the court, and she excepted. The trial proceeded to the court, and resulted in a judgment in favor of the bank. Mrs. Wheelock's motion for a new trial was overruled, and a bill of exceptions taken. She filed a petition in error in the circuit court, seeking a reversal of that judgment. In the circuit court the judgment of the common pleas was reversed for error, ‘ in refusing to plaintiff a jury trial, and in holding that she was not entitled to try her right to possession until she had first set aside the deed given by her to the defendant.’ To reverse that judgment is the object of this petition in error.
1. A deed executed during the duress of the grantor is not void, but voidable only.
2. On the trial of issues joined by a denial of the petition of the grantor, alleging that the deed was executed under duress, neither party is entitled to demand a jury.
James H. Hoyt, A. St. J. Newberry, and A. C. Dustin, for plaintiff in error.
Prentiss & Vorce, for defendant in error.
SHAUCK, J. (after stating the facts).
That Mrs. Wheelock did not, in her amended petition, pray for the cancellation of the deed, does not aid in...
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