Hensinger v. Dyer

• Decision Date: 20 December 1898
• Citation: 147 Mo. 219,48 S.W. 912
• Parties: HENSINGER et al. v. DYER et al.
• Court: Missouri Supreme Court

48 S.W. 912

147 Mo. 219

HENSINGER et al. v. DYER et al.

Supreme Court of Missouri, Division No. 2.

December 20, 1898.

DURESS — ESTOPPEL.

1. Where one, after executing a note and deed of trust under duress, makes an agreement with the beneficiary after sale has been advertised by the beneficiary, whereby the latter pays the interest on a prior mortgage and the taxes on the land, and takes his note, with sureties therefor, and he pays the cost of the advertisement, and the sale is stopped, he is estopped to deny the validity of the note and deed of trust.

2. A wife's contract, obtained by threats of criminal prosecution of her husband, may be avoided, though the threatened prosecution is for a just cause.

Appeal from circuit court, Pettis county; George F. Longan, Judge.

Suit by Sarah Hensinger and husband against Charles A. Dyer and another. Judgment for defendants. Plaintiffs appeal. Reversed in part.

John Cashman and G. W. Barnett, for appellants. Sangree & Lamm, for respondents.

BURGESS, J.

This is a suit in equity by plaintiffs, who are husband and wife, against Dyer as beneficiary, and Porter as trustee, in a deed of trust executed by plaintiffs, to enjoin a sale thereunder then about to be made, and to have declared void and of no effect the note whose payment is secured by the deed of trust upon the land of the plaintiff Sarah Hensinger, and described therein, upon the ground that their execution and delivery to Dyer were obtained by duress. A temporary injunction was granted, and, after answer filed by defendants, a motion was filed by them to dissolve the injunction, which and the case upon its merits were heard together; whereupon the temporary injunction was dissolved, the bill dismissed, and judgment rendered in favor of defendants for costs. Plaintiffs appeal.

The note calls for $1,399, is dated August 15, 1893, due six months after date, and bears interest at the rate of 6 per cent. per annum. It was credited by $199 on the day of its execution. The deed of trust to secure the payment of the note was executed on the 23d day of August, 1893, and filed for record in the recorder's office of Pettis county, where the land lies, the next day thereafter. The defendant Porter was, at the time the land was advertised for sale under the deed of trust, the acting sheriff of Pettis county, and as such had advertised to sell it on the 20th day of July, 1895. The tract contains about 72 acres, and belongs to the plaintiff Sarah Hensinger. In 1886 plaintiffs rented a farm from defendant Dyer, located in Pettis county, which they occupied as his tenants for about seven years, executing each year their note for the rent. Most of these notes were secured by chattel mortgages on stock and crops raised on the farm, and the note in question was given in settlement of all claims between the plaintiffs and Dyer. M. H. Hensinger was authorized by Dyer to sell the property conveyed by these mortgages, which he frequently did, paying the money received from such sales to Dyer. The deed of trust involved in this litigation was subject to a prior deed of trust on the same land for the sum of $1,100 in favor of one Inhauser. Before the execution of the deed of trust in question, plaintiffs' lease was terminated, and they had moved from defendant's farm. During the last year that they occupied it they raised some 500 bushels of corn on it, upon which Dyer claimed to have a lien under the statute. The corn was sold by Hensinger, and the proceeds applied to his own use, but he claims that he paid Dyer the value of the corn from the proceeds of the sale of other property, upon which he had no lien. Dyer threatened to institute criminal proceedings against Hensinger for embezzling the corn, if he and his wife did not execute to him their note for its value, secured by deed of trust upon the land of Mrs. Hensinger, and they testified that because of this threat and in fear of such prosecution they did execute the note and deed of trust in question. At the time of their execution, however, there was a settlement between plaintiffs and Dyer of their unsettled business transactions, and it was found that plaintiffs were indebted to Dyer in the sum of $1,399, for which they executed their note. Thereafter, upon a compromise of some of their business matters which were not included in the settlement, Dyer credited plaintiffs with $199 on said note as of the day upon which it bears date. Shortly before the papers were executed Dyer went to plaintiffs' residence, some seven miles from Sedalia, taking with him J. M. Byler, a notary public, to take the acknowledgment of the deed of trust in the event that he succeeded in getting plaintiffs to execute one, and this was one of the occasions upon which Dyer threatened to prosecute M. H. Hensinger if the note and deed of trust were not executed. Mrs. Hensinger had refused all the time, and still refused, to execute the deed; but on the afternoon of that day plaintiffs went to Sedalia, consulted with their son and with their attorney, and thereafter went to J. M. Byler's office, and there executed the papers. The acknowledgment was taken by Byler as notary. The deed of trust provides, that in case of default in the payment of the interest on the first mortgage debt, or in the payment of the Dyer note or interest thereon, or any part thereof, the land might be sold, at the pleasure of Dyer, after being advertised according to the provisions of the deed of trust; and default having been once before made in the payment of interest in February, 1895, a sale of the property was advertised under the deed of trust on February 19, 1895. In the meantime an adjustment was made between plaintiffs and Dyer, and it was agreed that Dyer was to accept a note for $140, signed by plaintiffs' son-in-law, Williams, and one Stephens, payable to M. H. Hensinger, and indorsed by him; pay the back taxes on the Hensinger land; the interest due Inhauser, amounting to $89.52; pay also the cost of the advertisement of the pending sale; and the balance of the Stephens note he (Dyer) was to apply on the defaulted interest on the note in question, and wait on all the balance of the defaulted interest until June 1, 1895; and, when that time elapsed, the back interest was to be paid by plaintiffs, or the deed of trust in question was to be foreclosed. Dyer made these payments according to the terms of his agreement, but default having thereafter again been made in the payment of interest on the first deed of trust, and in the payment of the principal and interest of the deed of trust held by him, he caused the property to be advertised for sale thereunder, at the court-house door in the city of...