First Guaranty State Bank of Clyde v. Tipton

• Decision Date: 03 February 1921
• Docket Number: (No. 1179.)
• Citation: 227 S.W. 963
• Parties: FIRST GUARANTY STATE BANK OF CLYDE v. TIPTON.
• Court: Texas Court of Appeals

227 S.W. 963

FIRST GUARANTY STATE BANK OF CLYDE v. TIPTON.

(No. 1179.)

Court of Civil Appeals of Texas. El Paso.

February 3, 1921.

Rehearing Denied March 3, 1921.

Appeal from District Court, Taylor County; W. R. Ely, Judge.

Suit by Mrs. Fannie Tipton against the First Guaranty State Bank of Clyde. Judgment for plaintiff, and defendant appeals. Affirmed.

Dallas Scarborough, of Abilene, for appellant.

W. P. Mahaffey, of Merkel, and Ben L. Cox, of Abilene, for appellee.

HARPER, C. J.

This suit was brought to cancel a deed to certain lots in the town of Merkel, Tex., executed by Mrs. Fannie Tipton, plaintiff, to First State Bank of Clyde, Tex., defendant. For cause of action she alleged that no consideration passed for its execution, that she signed and acknowledged it under duress, in this, that "she was fraudulently imposed upon and placed under duress and fear of having her sons arrested and under these circumstances signed and executed said deed of conveyance."

Defendant answered by general demurrer, general denial, and specially:

"That it extended a line of credit to two of plaintiff's sons in consideration of a chattel mortgage on certain mules; that thereafter and before the money had been used defendant learned that the stock had a prior lien upon it, and that thereupon it refused to pay any more checks; that thereupon plaintiff executed the deed in question in consideration that defendant pay the note secured by the first lien on the mules, and certain checks which had in the meantime been issued by her two sons to parties from whom they had purchased live stock; that it paid out $1,368.90 for said deed."

—prayed that, if it be denied title and possession of the land, then that it be decreed a lien upon it for said sum.

The cause was submitted to a jury upon special issues, and upon the verdict of the jury judgment was entered for plaintiff, from which an appeal has been perfected.

The jury found that the plaintiff was induced to sign the deed by duress, and that it was intended as a mortgage.

The two first assignments urge that the evidence is insufficient to raise the issue of duress.

"Duress may be practiced upon a person by threats of a criminal prosecution against the husband or wife of such person, or against a near relation such as a parent or child, and if the dread, anxiety, and fear of disgrace excited by such threats are so potent as to overcome the free will and choice of the person affected, such duress may be pleaded to invalidate any contract, conveyance, or security extorted from him by means of it." Black on Rescission and Cancellation, § 235; Medearis v. Granberry, 84 S. W. 1070; Dimmett v. Robbins, 74 Tex. 441, 12 S. W. 94; Cook v. Moore, 39 Tex. 255; Olivari v. Menger, 39 Tex. 76.

Appellant's proposition is that "threats that some one else will prosecute her sons is not sufficient to constitute duress," and "that the threats must be made by the party who obtains the benefit."

The evidence reveals that the appellee, Mrs. Tipton, an aged woman, the mother of two boys, was the owner of the property in controversy; that these boys, after having been given a line of credit by the appellant bank through its cashier, purchased cattle and hogs for shipment to market.

Some time after they had been buying and shipping, the cashier of the bank was informed that certain checks had been given in excess of the amount of money that the boys had to their credit. It had also been discovered that certain mules upon which the boys had executed a mortgage in favor of appellant had been previously mortgaged to the bank at Merkel. Appellant's cashier testified:

"I told Mrs. Beulah Tipton that I was going to refuse to pay the checks, and that I thought they would give the boys trouble; in other words, it was a violation of law to give a check without the money in the bank. My bank did not threaten her in any way. I went down to see Mrs. Tipton to get her to make me a deed to the property and she refused. I called Mrs. Beulah Tipton to get her to fix the instrument up some way. I told her that the boys would likely be brought back and put in jail and that they would likely be unable to give bond."

Mrs. Beulah Tipton testified:

"In 1917 my husband, Frank Tipton, and Bill Tipton, my brother-in-law, were engaged in buying some cattle, hogs, and live stock. They were doing business with the First Guaranty State Bank of Clyde, Tex. Relative to Mr. Homer Shanks calling me over the telephone and me having a conversation with him during 1917, he called me over the phone, it was either Wednesday or Thursday afternoon, I do not know which, and asked me where the boys was, and I told him they were in Wichita Falls. By `the boys' I supposed he meant my husband and Bill. He then asked me would I come to town, he wanted to see me on some very important business, and I told him I would, and I dressed and went to town, and...