J.M. Robinson, Norton & Co. v. Randall

• Decision Date: 21 February 1912
• Parties: J. M. ROBINSON, NORTON & CO. v. RANDALL et al.
• Court: Kentucky Court of Appeals

143 S.W. 769

147 Ky. 45

J. M. ROBINSON, NORTON & CO. v. RANDALL et al.

Court of Appeals of Kentucky.

February 21, 1912

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Action by J. M. Robinson, Norton & Co. against Francis A. Randall and others. Judgment for defendants, and plaintiff appeals. Affirmed in part, and reversed in part, and remanded.

S. M Sapinsky, Paul Blackwood, and J. R. Duffin, for appellant.

O'Doherty & Yonts and Henry W. Sanders, for appellees.

HOBSON C.J.

Francis A. Randall being indebted to the J. M. Robinson, Norton & Co. in the sum of $1,000, on July 13, 1909, executed to it 20 notes for $50 each, payable monthly. She owned a life estate in a house and lot in Louisville; her son, T. Roy Sale owning the remainder. She, her son, and his wife also executed a mortgage to secure the notes. This suit was brought by J. M. Robinson, Norton & Co. against them to subject the property to the debt. Mrs. Randall answered pleading that she was a married woman at the time the mortgage was given, and that her husband did not join her in the deed. The plaintiff replied that she represented herself to be a widow, and that the plaintiff had trusted her and accepted the mortgage on the faith of her representations that she was a widow. This was denied by a reply. The son and his wife filed an answer, in which they pleaded that the mortgage was obtained from them by fraud and duress. No reply was filed to this answer, proof was taken, and on final hearing the circuit court dismissed the petition, in so far as it sought to subject the property to the debt. The plaintiff appeals.

The weight of the evidence does not show that Mrs. Randall misled J. M. Robinson, Norton & Co. as to being an unmarried woman. She and her husband were married 20 years before. They both lived in Louisville; and, while they had been separated for six years, the officer of the J. M. Robinson, Norton & Co. who took the mortgage, according to her evidence, well knew that she was a married woman, and had often talked to her about her husband. The mortgage was given simply to secure a pre-existing debt, and we do not find from the evidence as a whole that she made any misrepresentations to or in any way misled J. M. Robinson, Norton & Co. as to being unmarried. It is true the deed uses the word "widow" after her name in the caption; but this is not sufficient to estop her from showing that she was a married woman. The judgment of the chancellor on her branch of the case is affirmed.

The correctness of the judgment on the other branch of the case depends on the sufficiency of the answer filed by T. Roy Sale and his wife. There having been no reply filed to the answer it must be taken as true; and if its allegations are sufficient to constitute a defense to the action the judgment dismissing the petition as to them is right. The answer, so far as material, is as follows: "Now comes the defendants, T. Roy Sale and Nettie Sale, and by leave of court *** say that they, and each of them, signed the mortgage set up and sought to be enforced in plaintiff's petition under and by reason of force, duress, and fraud. That they did not understand fully the provisions of the said instrument, and they did not consent thereto. That their codefendant, Francis A. Randall, secured their signatures, and each of them, to...