Englert v. Dale

• Decision Date: 24 May 1913
• Citation: 142 N.W. 169,25 N.D. 587
• Court: North Dakota Supreme Court

142 N.W. 169

25 N.D. 587

ANNA J. ENGLERT v. FRED V. DALE

Supreme Court of North Dakota

May 24, 1913

On petition for rehearing, June 19, 1913.

Appeal from the District Court for Mountrail County, Fisk, J.

Action to set aside a real estate mortgage. Judgment for the plaintiff, defendant appeals.

Reversed.

Judgment of the District Court reversed, and judgment ordered in favor of the defendant and appellant, and dismissing the action of plaintiff and respondent.

Noble Blood & Adamson, for appellant.

The consent of parties to a contract must be free; it is not free, when obtained by duress, menace, threat, undue influence, or mistake.

Rev Codes, 1905, §§ 5286-5290. McCormack v Volsack, 4 S.D. 67, 55 N.W. 145; Comp. Laws, §§ 3504, 3505.

To threaten to have the criminal laws of the state enforced does not constitute duress or menace. Gregor v. Hide, 10 C. C. A. 290, 27 U.S. App. 75, 62 F. 107.

E. R. Sinkler, for respondent.

The mortgage is void because obtained by menace, coercion, duress, and undue influence, and because it is without consideration. Rev. Codes 1905, §§ 9217, 9218, 5286-5296.

It is duress when a mother is induced by threats to do an act to save her son from criminal prosecution. Weiser v. Welch, 112 Mich. 134, 70 N.W. 438; Shultz v. Culbertson, 46 Wis. 313, 1 N.W. 19; Cribbs v. Sowle, 87 Mich. 340, 24 Am. St. Rep. 166, 49 N.W. 588; McCormick Harvesting Mach. Co. v. Hamilton, 73 Wis. 486, 41 N.W. 727; Eadie v. Slimmon, 26 N.Y. 9, 82 Am. Dec. 395; Harris v. Carmody, 131 Mass. 51, 41 Am. Rep. 188; Williamson H. F. Co. v. Ackerman, 77 Kan. 502, 20 L.R.A.(N.S.) 484, 94 P. 807.

A mortgage given by a woman seventy years old, under threats to send her son-in-law to jail if she refused, was held void for duress. Bentley v. Robson, 117 Mich. 691, 76 N.W. 146.

Guilt or innocence is immaterial, in determining the question of duress. Thompson v. Niggley, 53 Kan. 664, 26 L.R.A. 803, 35 P. 290; Mack v. Prang, 104 Wis. 1, 45 L.R.A. 407, 76 Am. St. Rep. 848, 79 N.W. 770; Hargreaves v. Korcek, 44 Neb. 660, 62 N.W. 1086; Giddings v. Iowa Sav. Bank, 104 Iowa 676, 74 N.W. 21; Leflore County v. Allen, 80 Miss. 298, 31 So. 815; Benedict v. Roome, 106 Mich. 378, 64 N.W. 193.

Equity will cancel a mortgage given through fear and threats of criminal prosecution of a relative. Davis v. Smith, 68 N.H. 253, 73 Am. St. Rep. 584, 44 A. 384; Henry v. State Bank, 131 Iowa 97, 107 N.W. 1034; Meech v. Lee, 82 Mich. 274, 46 N.W. 398.

Promise to suppress a prosecution will not support a promise to pay money. Racine-Sattley Mfg. Co. v. Pavlicek, 21 N.D. 222, 130 N.W. 229.

Findings fully sustained by the evidence will not be reversed by the appellate court. Jasper v. Hazen, 4 N.D. 1, 23 L.R.A. 58, 58 N.W. 454; James River Nat. Bank v. Weber, 19 N.D. 702, 124 N.W. 952; Hostetter v. Brooks Elevator Co. 4 N.D. 357, 61 N.W. 49.

A contract of suretyship must be supported by a sufficient consideration. Plaintiff was merely a surety--without consideration. Davis v. Wells, F. & Co. 104 U.S. 159, 26 L.Ed. 686; Allison v. Wood, 147 Pa. 197, 30 Am. St. Rep. 726, 23 A. 559; Kulenkamp v. Groff, 71 Mich. 675, 1 L.R.A. 594, 15 Am. St. Rep. 283, 40 N.W. 57; 27 Am. & Eng. Enc. Law, 446, 447, and cases cited; 26 Am. & Eng. Enc. Law, 411, and cases cited.

The release of the mortgage on the government homestead was no consideration for the new mortgage. Sharpe v. Rogers, 12 Minn. 174, Gil. 103; Nichols v. Mitchell, 30 Wis. 329; Hooker v. Knab, 26 Wis. 511; Newell v. Fisher, 11 Smedes & M. 431, 49 Am. Dec. 66; New Hampshire Sav. Bank v. Colcord, 15 N.H. 119, 41 Am. Dec. 686; Taylor v. Weeks, 129 Mich. 233, 88 N.W. 466; Luken's Appeal, 143 Pa. 386, 13 L.R.A. 582; Duck v. Antle, 5 Okla. 152, 47 P. 1056; Long v. Towl, 42 Mo. 545, 97 Am. Dec. 355; Price v. First Nat. Bank, 62 Kan. 743, 64 P. 639; Robinson v. Jewett, 116 N.Y. 40, 22 N.E. 224; 27 Am. & Eng. Enc. Law, 494.

OPINION

Statement

BRUCE J.

This case comes before us for a trial de novo under the Newman act. The complaint, dated February 24, 1911, alleges that on the 21st day of December, 1908, through fraud and coercion, duress and undue influence, the plaintiff executed to the defendant a mortgage on a quarter section of land. That said mortgage was and is entirely without consideration and foundation; that the plaintiff is an aged woman seventy-six years old (the proof showed sixty-seven), and of sickly, nervous disposition; that on the 21st day of December, 1908, one P. L. Higgins, an agent of the defendant, came to the plaintiff's land, having in his possession certain notes and a mortgage, and that he then and there requested the plaintiff to sign said notes and mortgage; that she refused to do so, and that thereafter and thereupon the said Higgins told plaintiff that her son, one C. L. Englert, had committed a criminal offense and had sold mortgaged property, and that unless she signed said notes and mortgage he would get out a warrant for the arrest of the said C. L. Englert and have him sent to the penitentiary; and that said P. L. Higgins then and there threatened to cause the arrest of her said son and send him to the penitentiary; and the said P. L. Higgins threatened to accuse the said son of a crime and felony if this plaintiff did not sign the notes and mortgage, and that by reason of the threat made by P. L. Higgins this plaintiff was put in great fear, and was coerced and by duress compelled to sign said notes and mortgage, and the signature of this plaintiff to said notes and mortgage was extorted from her by means of such threats against her son; that she would not have signed said notes except for the fear induced by such threats. Then follows a prayer for a cancelation of said notes and mortgage, and that the same be declared null and void. The answer denies all duress and coercion, and alleges that the mortgage was given to secure the sum of one thousand dollars ($ 1,000), and interest. The trial court found that the charges of coercion and duress set forth in the complaint were true, and that "on the 21st day of December, 1908, one P. L. Higgins, who was at said time the agent of the above-named defendant, came to the place where the plaintiff was then living with her youngest son, with whom she had always lived, the said plaintiff being alone in the house at said time, the son being away; and at that said time the said P. L. Higgins requested the plaintiff to give a mortgage on her land to the said Dale, and the plaintiff refused to do so, and thereupon the said Higgins told her that unless she gave the mortgage, Dale, the defendant, would send her son to the penitentiary, and the said Higgins threatened to charge her son with a crime if she did not sign the mortgage, and that the said plaintiff executed the said notes and mortgage by reason of, and only by reason of, the threats which the said Higgins made, and to save her son from going to state prison; and that only for such threats she signed said mortgage, and would not have signed same but for such threats, and that said mortgage was procured through duress." His conclusions of law were that the plaintiff was entitled to judgment, declaring the said mortgage and notes null and void, and that the said mortgage be declared canceled. From this judgment an appeal was taken.

BRUCE, J. (after stating the facts as above). There is much in the evidence in this case to support the claim of the plaintiff. We are satisfied, however, that there is no such clear and convincing proof of fraud or duress as would justify us in setting aside the mortgage. There is evidence to the effect that the plaintiff was sixty-seven years old, that she had five living children, that Cassius Englert was the youngest son. She testified that she had not seen him since the 5th day of August, 1910, when he left the country, charged with having sold a mortgaged threshing machine, that they had lived together up to that date for a number of years upon his farm; that on the 21st day of December, 1908, between 1 and 2 o'clock P. M. one P. L. Higgins drove to the farm with a liveryman by the name of Johnson; that he knocked at the door, and asked where the boy, Cassius, was; that she told him that he was at Columbus after coal; that Higgins next said that "Cad (Cassius), he wanted--he had some papers that he wanted me to make out--said he had committed a criminal offense and he would send him to state prison--Mr. Dale could send him to state prison, and would if I didn't fix them up--Mr. Dale thought if he came to me I would fix it up;" that she believed what he said; that she asked Higgins to wait until her boy came home, but he said he could not wait; that she was pretty badly scared, and thought that perhaps he would send her boy to the penitentiary; that her health was bad at the time and she was excited; that she signed the notes and mortgage to save her son from going to state prison; that she did not owe Mr. Dale anything; that she had no reason for signing the notes and mortgage except to save her boy; that she thought Higgins drew up the mortgage while he was at her house, that he was writing for quite awhile, he said he was a notary public and had authority to handle these papers; that after she signed the mortgage she asked Higgins to wait until the boy would come; that John Johnson, the liveryman, was out in the barn at the time of the talk about putting her son into the penitentiary. She testified that Higgins told her that her son "had mortgaged property and didn't tell Mr. Dale, and had taken the bankrupt law," and that she believed if she didn't sign the mortgage that they would put her son in the penitentiary; that Higgins didn't tell her that her son had sold mortgaged property, he said that he had mortgaged...