Hargreaves v. Menken

• Decision Date: 22 June 1895
• Docket Number: 6314
• Citation: 63 N.W. 951,45 Neb. 668
• Parties: ALFRED E. HARGREAVES, APPELLEE, v. HENRY MENKEN ET AL., APPELLANTS
• Court: Nebraska Supreme Court

63 N.W. 951

45 Neb. 668

ALFRED E. HARGREAVES, APPELLEE, v. HENRY MENKEN ET AL., APPELLANTS

No. 6314

Supreme Court of Nebraska

June 22, 1895

APPEAL from the district court of Johnson county. Heard below before BABCOCK, J.

Reversed, and cause dismissed.

J. Hall Hitchcock, T. Appelget, and E. H. Wooley, for appellants.

Cornish & Lamb, contra.

OPINION

IRVINE, C.

Hargreaves began this action against Menken and wife, Herman and wife and J. H. Shepherd to foreclose a mortgage made by the Menkens to Hargreaves to secure the payment of a note for $ 316. Shepherd admitted the allegations of the petition, and by cross-petition asked a foreclosure of the same mortgage alleging that it also secured a note of $ 220 in favor of Shepherd. The Menkens answered both the petition and cross-petition, alleging that the mortgaged premises had been their homestead, and that the notes and mortgage were procured from them by duress, in that at the time Menken was wrongfully deprived of his liberty at the instance of Hargreaves and Shepherd, and that the mortgage was induced by reason of such imprisonment. Herman answered, setting up title in himself under an execution and sale of the property by virtue of certain judgments against Menken. Herman also averred that the mortgage of Hargreaves and Shepherd was withheld from record in fraud of his rights, and still further, that certain proceedings at law were pending to recover the debt secured by the mortgage. There was a decree for the plaintiff and the defendant Shepherd foreclosing the mortgage, and the Menkens and the Hermans appeal.

On the question of duress the evidence is conflicting. It appears that a firm of which Menken was a member was indebted to Hargreaves Bros., a firm of which Hargreaves was a member that Menken's firm had made some transfer of its property, and that an attorney for Hargreaves was endeavoring to collect the debt. While these matters were in progress, Hargreaves made a complaint against Menken, charging him with obtaining goods under false pretenses. Menken was arrested and released on his own recognizance. Thereafter, and while the prosecution was pending, he and his wife executed the notes and mortgage, and soon thereafter the prosecution was dismissed, the docket showing because no one appeared for the state. Menken testifies that Hargreaves' attorney told him he would send him to the penitentiary unless he "fixed the matter up," and that if he would secure the debt he would be released. The attorney in question testified that he made no promises or threats; that Menken came to him without previous solicitation and desired to secure the debt, stating as a reason therefor that he wished Hargreaves, when secured, to proceed against other persons who Menken thought had caused him trouble, and dealt unfairly with him. The attorney also testifies that Menken asked him what would become of the prosecution, and that the attorney answered that he could make no promises, that it was a criminal case and would have to take its course. There is evidence corroborating the testimony of the attorney. If this testimony is true, then it is very clear that the mortgage was not obtained by duress. The finding of the trial court was, therefore, in this particular justified by the evidence. Nor can Herman claim anything by reason of the withholding of the mortgage from record. The mortgage was made May 9, 1890, and was recorded January 8, 1891. None of the judgments under which the land was sold became a lien thereon until September, 1890. The executions were not issued until January 20, 1891; the sale took place March 7, 1891. A purchaser at execution sale of land takes only the interest of the judgment debtor at the time the judgment became a lien on the land, and a deed or mortgage then unrecorded is to be preferred as against the title of a purchaser at the execution sale, at least if it be recorded before the sale. (Mansfield v. Gregory, 8 Neb. 432, 11 Neb. 297; Harral v. Gray, ...