Hale v. Hale

Decision Date10 May 1932
Citation245 Ky. 358,53 S.W.2d 554
PartiesHALE et al. v. HALE.
CourtKentucky Court of Appeals

Rehearing Denied Nov. 15, 1932.

Appeal from Circuit Court, Floyd County.

Action by Daisy Hale against Josie Hale and another. From judgment for plaintiff, defendants appeal.

Reversed with directions.

Edward P. Hill, Jr., of Prestonsburg, for appellants.

James &amp Hobson and J. B. Clarke, all of Prestonsburg, for appellee.

CREAL C.

This appeal is from a judgment of the Floyd circuit court in which a mortgage given by Daisy Hale and her husband, Henry Hale to Josie Hale to secure payment of a note for $1,600, was canceled, set aside, and held for naught.

In the petition which joined Josie Hale and her husband, Ben Hale as defendants, it is alleged that on April 12, 1928, when the mortgage was signed, plaintiff's husband, Henry Hale, was insane and of such unsound mind that he was incapable of transacting business or acknowledging an instrument of any kind or of comprehending or understanding the effect of the instrument thus signed and acknowledged. She further alleged that the mortgage was executed to secure a loan of $1,600 to her husband, and that at the time she signed and acknowledged same she was under duress and fear of threats and violence made against her by her husband, but for which she would not have signed and acknowledged the instrument; that both defendants at the time knew of the mental condition of Henry Hale and of the fear and duress under which she was laboring that she received no part or consideration for the mortgage; that, because of the duress under which she was laboring and the mental condition of her husband, the mortgage was void.

The answer as amended, in addition to making a general denial of the allegations of the petition, affirmatively alleged that Daisy Hale on numerous occasions solicited them to make the loan and indicated her willingness to execute the mortgage to secure same; that she had never at any time expressed or indicated an unwillingness to give the mortgage or that she was laboring under any duress or fear; that the money, the payment of which the mortgage secured, or a portion thereof was used to discharge obligations of Daisy Hale and Henry Hale; that by her silence as to her alleged duress and fear, and as to the mental condition of her husband both before and after the execution of the mortgage and until the action was instituted, she was estopped to assert or maintain her alleged cause of action against defendants. The affirmative allegations of the answer as amended were controverted by reply, thus completing the issues.

Appellee and her son testified as to acts and conduct of her husband toward her for some days prior to the execution of the mortgage, and friends who stayed at their home the night before the transaction took place also testified concerning this. Their evidence indicates that appellee protested against giving the mortgage, and pleaded with her husband not to require her to do so; that he continually coerced, menaced, and threatened her, even to the extent of saying that he would kill her if she refused to comply with his wishes. She stated that on her way to the home of appellants, where the mortgage was executed, she continued her protests, and was crying and pleading with her husband in the presence of the deputy clerk who took their acknowledgment to the mortgage. According to the evidence of Mrs. Hale and those who were in her home the night previous to the execution of the mortgage, Henry Hale had worked himself into a state of high nervous tension and they gave as their opinion that he was crazy. The only evidence tending to indicate in any way that Josie Hale or her husband knew of or suspected the alleged duress under which appellee was laboring was her statement that she told Ben Hale that she did not want her husband to get the money. Her reason, as she testified, for not disclosing the true state of affairs to appellants, was that she was under fear that her husband would kill her, and also that she had no opportunity to tell them privately, as her husband would not allow her to be out of his presence.

Appellants testified that they knew nothing of the alleged threats of Henry Hale against his wife or of the duress or fear under which she claimed to be laboring; that at the time the mortgage was written and executed she appeared in good spirits and was laughing and...

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