Gabbey v. Forgeus

• Decision Date: 10 December 1887
• Parties: ROBERT S. GABBEY, et al., v. JAMES W. FORGEUS, as Administrator of the estate of Wm. J. Norris
• Court: Kansas Supreme Court

15 P. 866

38 Kan. 62

ROBERT S. GABBEY, et al., v. JAMES W. FORGEUS, as Administrator of the estate of Wm. J. Norris

Supreme Court of Kansas

December 10, 1887

Error from Shawnee District Court.

ACTION to foreclose a mortgage. Trial at the October Term, 1884, and verdict and judgment for defendant Norris. Defendants, Gabbey and wife, bring the case to this court. The material facts are stated in the opinion.

Judgment affirmed.

A. H Case, for plaintiffs in error.

W. P Douthitt, and Vance & Campbell, for defendant in error.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.:

This was an action to foreclose a mortgage on one hundred and sixty acres of land in Shawnee county. The land was the homestead of Robert S. Gabbey and his wife Annie W. Gabbey, who resided thereon. The suit was instituted by R. T. Lee, who claimed a mortgage thereon, and he made William J. Norris, who claimed a second mortgage lien thereon, a party defendant. Norris answered, and filed a cross-petition, claiming that the defendants, Robert S. Gabbey and Annie W. Gabbey, executed and delivered to him a mortgage on the same land to secure a note for $ 1,500, dated April 9, 1872, due in twelve months thereafter, with interest at the rate of 12 per cent. per annum, the note signed by the husband, the mortgage signed and acknowledged by both husband and wife, and asking that it be declared a lien, and be foreclosed. Annie W. Gabbey filed an answer to the cross-petition of Norris, in which she alleged her homestead rights in the land; that more than the sum of $ 3,000 of the purchase-money of the land had been her personal property derived from the estate of her father; that her signature to the mortgage was procured by fraud of both her husband and Norris, and was by force and violence as well as by fraud, extorted from her by her husband, with the full knowledge of Norris; that the fraud and violence spoken of consisted of threats of personal violence by her husband if she did not sign the mortgage, and of actual force; that without this fraud and threat of personal violence, she would not have signed the mortgage. She asked that the mortgage be declared void, and her answer was verified by her oath. The case was tried by a jury. The assignments of error are various exceptions to the rulings of the trial court in excluding testimony, and many exceptions to the instructions of the court to the jury. The jury found for Norris, and the court overruled a motion for a new trial. The exceptions to the exclusion of testimony are quite numerous, but all are of the same class, a few instances giving a general idea of the whole. E. E. Abbott, a witness for Mrs. Gabbey, stated in his deposition: "Annie W. Gabbey did not want to sign the mortgage, because it was on her homestead, but her husband insisted that she must do it, and forced her to sign it against her will." The refusal of the court to permit this sentence to be read to the jury is assigned as error. It is very evident that this is but a statement of the conclusions of the witness, and not a recitation of facts showing the acts and declarations of Mrs. Gabbey respecting the mortgage and what acts or declarations of Gabbey had forced his wife to sign. The same witness recited what was done at the time of the signature, and commented on the "excitement and distress" of Mrs. Gabbey, and added, "and we all pitied her." This was very properly excluded.

Mrs. Gabbey testified: "I also swear that my signature to the mortgage now held by Wm. J. Norris on my homestead was not my voluntary act and deed, but was only obtained through fear of personal violence on the part of my husband." This was excluded, because she did not attempt to state what particular acts of her husband caused the fear of personal violence. There are perhaps two instances in which the facts stated by the witness ought to have gone to the jury, but they were not important and controlling enough to be considered material errors. Apart from these two instances, the court seems to have been unusually liberal in the allowance of testimony to the jury, and especially so in the case of Dr. Gabbey and his wife. The instructions are criticised, and much complaint is made of the eighth, ninth, tenth, eleventh, and twelfth. The instructions complained of are as follows:

"8. Now if you find from the evidence that the defendant Annie W Gabbey did sign the Norris mortgage, but that she signed it under compulsion or coercion on the part of her husband, Robert S. Gabbey; and that the acts of the defendant Robert S. Gabbey, which caused and induced her to sign this mortgage, were such as to make the act on her part wholly involuntary; and that the threats and conduct of her husband, Robert S. Gabbey, were such as to reasonably create in her mind a fear of personal injury if she disregarded his demands; and that under these circumstances, and that because and by reason of such fear produced and induced by the violent actions and conduct of her said husband, Robert S. Gabbey, she did sign the mortgage, then, and under such circumstances, such signing and acknowledgment would constitute a legal defense against the defendant Broaddus, as executor of the Norris estate in this action; and under such circumstances your verdict should be for the defendant Annie W. Gabbey; and that the defendant Broaddus, as executor of the Norris estate, had not a lien for the payment of the debt due him from Robert S. Gabbey upon the land described in said mortgage. Now, in order to make duress or compulsion effective as a defense in this action, and sufficient to invalidate the Norris mortgage, the compulsion must have been so great as to take away the voluntary consent of the defendant Annie W. Gabbey, because her consent to the signing and acknowledging the instrument must have been voluntary, and therefore the compulsion must have been of such a character as to excite a sense of fear on her part of some grievous wrong, as of death, or of personal violence, or great bodily injury, or unlawful imprisonment. It is not enough that she signed the mortgage reluctantly or hesitatingly simply, or that she signed it under protest, or even against her best judgment; but it must have been such a compulsion as would in fact destroy for the time being her freedom of action, and overcome her ordinary powers of resistance; then, and if you so find that there was such compulsion used by her husband, Robert S. Gabbey, to induce her to sign the mortgage, and that under and by virtue of such compulsion she did sign and acknowledge it, then your verdict should be that the defendant Broaddus, as executor of the Norris estate, has not a lien upon the land described in his answer and cross-petition for the amount due upon the promissory note sued upon by him.

"9. I further instruct you, that when a mortgage regular in appearance and bearing the genuine signature of the person and such mortgage is duly acknowledged and certified by the mortgagors or grantors, and such mortgage is attacked to avoid liability thereunder, the evidence must be clear and convincing, and in such a case the burden of proof rests upon the party disputing the liability, of overcoming the presumption of validity arising from the terms of the written instrument of that character; and in such case, if the proof is doubtful, uncertain and unsatisfactory, and insufficient to overcome the...