Coveney v. Pattullo

• Decision Date: 08 April 1902
• Citation: 89 N.W. 968,130 Mich. 275
• Court: Michigan Supreme Court
• Parties: COVENEY v. PATTULLO.

89 N.W. 968

130 Mich. 275

COVENEY v. PATTULLO.

Supreme Court of Michigan

April 8, 1902

Appeal from circuit court, Berrien county, in chancery; Orville W Coolidge, Judge.

Suit by Joseph E. Coveney against James B. Pattullo. From a decree for plaintiff, defendant appeals. Affirmed.

Lawrence C. Fyfe and Edward S. Kelley, for appellant.

O'Hara & O'Hara, for appellee.

MOORE J.

The bill of complaint in this cause was filed for the purpose of obtaining a decree canceling and declaring void a certain mortgage executed by complainant to defendant July 10, 1900 at Dawson, Yukon territory, on lands situate in Berrien county. The bill alleges that the mortgage was obtained by fraud, conspiracy, duress, and was without consideration. It is alleged: That in the latter part of May, 1900, the complainant went to Dawson, in the territory of Yukon, and there met one Frank Phiscator, who had formerly lived in Berrien county. That complainant had a just cause of action for damages against Phiscator. Upon meeting Phiscator at Dawson, the complainant and Phiscator entered into negotiations, the result of which was an agreement by Phiscator to pay complainant $7,000 in consideration of a release of all claims against him by complainant, and upon condition that complainant at once leave the Klondike region. On the 26th of May, 1900, Phiscator paid complainant $7,000 and on the same day the money was placed in a bag, and committed to the charge of the purser of a steamboat, upon which complainant had engaged passage for the purpose of returning to the United States. A few minutes after this complainant was arrested by officers of the Yukon territory upon the charge of robbery, preferred by Phiscator, and lodged in jail at Dawson. Complainant thereupon inquired for an attorney, and employed the defendant to defend him. Complainant then had $200 with him, which Pattullo exacted and which complainant paid him. Pattullo informed complainant that there was no case against him. Two days after his arrest an examination was had before a justice, and complainant was bound over to appear at the territorial court on June 16, 1900. Pattullo did not appear before the court on the day assigned, although complainant sent for him. Complainant pleaded not guilty to the complaint, it having been amended to a charge of unlawfully obtaining money by menaces. The case was then adjourned to September 16, 1900. The complainant then became suspicious of Pattullo, and insisted upon having another attorney; and another attorney (Mr. White) was thereafter employed to act with defendant as assistant counsel. On the 8th day of July, 1900, while complainant was in jail, the defendant and White came to the jail, and informed him that they could obtain his release from imprisonment and his liberty upon the following conditions: (1) That complainant must plead guilty to the charge against him; (2) pay to defendant $200 in cash, complainant having already paid him and White $500; (3) sign a written statement of retraction, reciting that Phiscator had never wronged him, that his accusation against Phiscator was false, and that complainant had threatened Phiscator's life to compel him to give complainant $7,000; (4) complainant must execute a mortgage upon his farm at Berrien county, Mich., conditioned to pay Pattullo $800 more for attorney's fees; (5) complainant must assign and pay back to Phiscator the $7,000. The bill alleges that the complainant, having then been in jail 44 days, and being anxious to regain his liberty at any expense, and unable to obtain bail, and in a state of mind in which he could be induced to agree to anything in order to obtain his liberty, consented to the conditions required, did execute the mortgage heretofore described, signed the recantation, caused the $7,000 to be paid back to Phiscator, and went into court and pleaded guilty to the charge against him. Complainant thereupon left the territory, and returned to the United States. The bill further alleges that complainant paid to the defendant $700 in cash while he was in jail at Dawson; that this was more than the services of him and White were reasonably worth; that a charge of $1,500 is unreasonable and extortionate; and that the mortgage was not his free act and deed, but was procured through undue influence and taking advantage of his fears and feeble condition while in imprisonment. The bill further charges that the defendant was in league with Phiscator for the purpose of defrauding him and extorting an unreasonable fee. The bill concludes with a prayer for a decree canceling the mortgage. The answer admits the execution of the mortgage described in the bill of complaint; that the complainant signed the writing of recantation referred to, agreed to plead guilty to the charge against him, and that he did plead guilty thereto; that he paid back or caused to be paid back to Phiscator the said sum of $7,000; and that these acts and agreements on complainant's part were done and entered into as a condition of being released from prison on a suspended sentence, on complainant agreeing to leave the territory. The answer alleges, however, that these acts were done in consequence of the voluntary offer on complainant's part, and not on account of any inducement held out or restraint imposed on complainant by defendant, White, or anybody else. The answer further alleges that the services of defendant and White were reasonably worth $1,500, that complainant voluntarily offered to pay defendant $1,000 if he would obtain his release from jail, and that on the employment of White it was agreed by complainant to pay the further sum of $500 for attorney's services. It is further alleged that complainant himself suggested the giving of a mortgage to secure the payment of the services of defendant and White. The answer then gives a version of what occurred in court. The answer further alleges that defendant was involved in great labor in his services for the complainant; that the services of himself and Mr. White were reasonably worth $1,500; and that, considering the high prices of everything in Yukon territory, the charge was in no wise unreasonable. The testimony of complainant was taken in open court. The testimony on part of the defendant was taken by deposition. The circuit judge found that the making of the mortgage was as much a condition of complainant's obtaining release from jail as any other of the requirements; that it was not the free and voluntary act of complainant; that, as a matter of fact the services of defendant and White for complain...