Edwards v. Bowden

• Decision Date: 07 November 1890
• Citation: Edwards v. Bowden, 107 N.C. 58, 12 S.E. 58 (N.C. 1890)
• Court: North Carolina Supreme Court
• Parties: Edwards et al. v. Bowden et al.

107 N.C. 58

12 S.E. 58

Edwards et al.

v.Bowden et al.

Supreme Court of North Carolina.

Nov. 7, 1890.

Mortgages—Validity—Compulsion.

In an action to foreclose a mortgage given by a husband and wife on the wife's property, the wife testified that at the time she executed it she was confined to her bed by sickness; that her husband had threatened to abandon her and their two children, who were dependent upon him for support, if she did not sign it; that one of plaintiffs told her that if she did not execute the deed he would sell all her husband's chattels, on which they had a mortgage, and would prosecute and put him in jail for failing to convey to them certain lands which he bad agreed in writing to convey in order to get advances.Held, that while none of these facts were sufficient to constitute duress, yet, taken together, they were sufficient to make out a defense of fraud and compulsion.

Appeal from superior court, Greene county; Boykin, Judge.

Action for the foreclosure of a mortgage deed executed by the defendants to the plaintiffs on the feme defendant's land.The feme defendant, in her answer, alleged that she is a feme covert, and that she is the wife of the other defendant, R. E. Bowden; that her signature to said mortgage was obtained by fraud and collusion of the plaintiffs, and the threats and compulsion of her said husband; that her said husband, R. E. Bowden, told her that if she did not sign said mortgage deed to plaintiffs that he would leave and abandon her; that at the time she executed said mortgage deed to plaintiffsshe was sick and confined to her bed; that the said Bettie J. did not sign said mortgage deed willingly and voluntarily, but was constrained to execute the same by reason of the threats and compulsion of her said husband, R. E. Bowden, and the fraudulent misrepresentation of the plaintiffQ. J. Edwards.The defendantBettie J. Bowden testified that at the time she executed the mortgage deed sued on, and at the time when her private examination was taken, she was sick in bed; that her husband had threatened her that if she did not sign it he would leave her; that she had two children, and was dependent upon her husband for her and their support, and that she believed that her husband would execute his threat; that one of the plaintiffs told her that if she did not execute such deed he would sell all her hus band's chattels, upon which they had a mortgage, and would prosecute and put him in jail for failing to convey to them certain real estate which he had agreed in writing to convey to them in order to get advances.The plaintiffs' counsel contended that there was not sufficient evidence of duress to avoid the deed as to the feme defendant.The court charged the jury " that if they believed that at the time the feme defendant executed the mortgage deed sued on that she was sick in bed, and the defendantR. E. Bowden, her husband, had threatened her that if she did not execute the deed that he would leave her; that she had two children, and was dependent upon her husband for her and their support, and that she believed that her husband would execute his threat, and that one of the plaintiffs told her that if she did not execute said deed that he would sell the chattels of her husband, upon which they had a mortgage, and prosecute and put him in jail for failing to convey to them certain real estate which he had agreed in writing to convey to them in order to get advances, and that said feme defendant, being induced by said threats of her husband and the said plaintiffs, and on account of her sickness, executed said deed, that this would be duress, and that they should find that she did not execute said deed willingly and would find for the defendants." To which part of the charge the plaintiffs excepted.From a judgment entered on verdict for defendantsplaintiffs appeal.

W. C. Munroe, for plaintiffs.

O. M. Lindseyand F. A. Woodard, for defendants.

Shepherd, J."By duress, in its more extended sense, is meant that degree of severity, either threatened and impending, or atually inflicted, which is sufficient to overcome the mind and will of a person of ordinary firmness."2 Greenl. Ev. § 301.Bacon, in his Abridgment, (volume 2, p. 156,) referring to Lord Coke, says " that for menaces, in four instances, a man may avoid his own act: (1) For fear of loss of life.(2) Of loss of member.(3) Of mayhem.(4) Of imprisonment." The threat of imprisonment "may be to the person of the party or of the party's husband, wife, parent, or child, through constraint of which he in form consents to...