First Nat. Bank of Nevada v. Bryan

• Decision Date: 18 October 1883
• Parties: THE FIRST NATIONAL BANK OF NEVADA v. BRYAN ET AL
• Court: Iowa Supreme Court

17 N.W. 165

62 Iowa 42

THE FIRST NATIONAL BANK OF NEVADA v. BRYAN ET AL

Supreme Court of Iowa, Dubuque

October 18, 1883

Appeal from Story District Court.

THE plaintiff, as the indorsee before maturity of a negotiable promissory note for $ 645, executed by Solon Bryan to the order of P. F. Nelson, brings this action to recover the amount of said note, and to foreclose a mortgage to secure the same, executed by Mary E. Bryan and Solon Bryan upon their homestead. The court found that both the note and mortgage were obtained by duress, and that the plaintiff, as an innocent holder of the note for value before maturity, was entitled to recover upon the note, but was not entitled to a foreclosure of the mortgage. The plaintiff appeals.

AFFIRMED.

Dyer and Fitchpatrick, for appellant.

C. H Balliett and S. F. Balliett, for appellee.

OPINION

DAY, CH., J.

I. The appellant insists that the answer does not set up that the note and mortgage were obtained by duress. The appellees filed an amended abstract, setting forth that the defendant under leave of court, filed an amended answer to meet the evidence, formally setting up that the note and mortgage were made under duress. The appellant denies that such amendment was filed. We have examined the transcript, and do not find any reference to such amendment. However, we regard this question as immaterial. The original answer sets up facts sufficient to present the defense of duress, in view of the fact that the evidence was admitted without objection.

II. It appears from the evidence that Solon Bryan had a contract for erecting a school house in Harlan; that he purchased the bricks therefor from P. F. Nelson, and that, to secure $ 945 of the purchase price, he executed a chattel mortgage upon one hundred and fifty thousand of the bricks that he failed in the execution of his contract, and turned over his contract, together with the bricks mortgaged to Nelson, to the sureties on his bond for the performance of his contract; and that they assumed and completed the erection of the building. It further appears that the sureties had knowledge of the existence of the mortgage when they took the assignment of the contract. The attorney of Nelson locked Solon Bryan in his office, and demanded a mortgage to secure the balance due on the bricks, which was then $ 645, and represented that unless he executed the mortgage he was liable to prosecution, and would probably be prosecuted for selling and disposing of mortgaged property. The attorney also procured a letter to Mary E. Bryan from her husband for a description of the homestead property. She at first refused to furnish a description without seeing her husband. The attorney of Nelson told her that she could not see her husband, that he was locked up in his office and could not come out; that Bryan had sold mortgaged property; and that they had a warrant for his arrest, and that if she would give a description of the homestead for a mortgage it would save his arrest; that it was a penitentiary offense to sell mortgaged property, and that if she did not give the description they would send him to the penitentiary. Mary E. Bryan went to the office of the attorney and was admitted, and her husband then told her that they had got him into some trouble, and that by giving a mortgage upon the homestead for a short time it would help him out. ...