Marston v. Sarah J. Brittenham.

• Decision Date: 31 January 1875
• Citation: 76 Ill. 611,1875 WL 8253
• Parties: JEREMIAH MARSTON et al.v.SARAH J. BRITTENHAM.
• Court: Illinois Supreme Court

76 Ill. 611

1875 WL 8253 (Ill.)

JEREMIAH MARSTON et al.

v.SARAH J. BRITTENHAM.

Supreme Court of Illinois.

January Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of DeWitt county; the Hon. THOMAS F. TIPTON, Judge, presiding.

This was a bill in chancery, by Sarah J. Brittenham against Jeremiah Marston, Daniel K. Tenney, John J. McClellan, John V. Farwell, Charles B. Farwell, Simon Farwell, Clifton H. Moore and Vespasian Warner. The facts of the case and object of the bill are stated in the opinion of the court.

Messrs. MOORE & WARNER, for the appellants.

Messrs LODGE & HUSTON, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The complainant below, and appellee here, asks that a certain deed of trust, purporting to have been executed by herself and her then husband, John A. Brittenham, on lands in DeWitt county, which were her separate property, be set aside, or that she be allowed to redeem from the sale had thereunder.

The deed of trust purports, on its face, to have been executed on the 10th day of March, 1870, by complainant and her husband to John J. McClellan, conveying the lands described therein, in trust, to secure the payment of a promissory note of that date for $2407.33, given by them to Farwell & Co., and payable in eight months, with interest at the rate of ten per cent per annum. Power is given the trustee, on non-payment of the note, to sell and convey the lands, after advertising the sale for thirty days in some newspaper published in DeWitt county.

The fact is undisputed, that the original indebtedness for which the note was given was contracted by the husband of complainant, in his own business, and that her lands were not otherwise liable for its payment than by virtue of the deed of trust.

The grounds upon which relief is claimed, as stated in the bill, are three:

1st. That complainant did not acknowledge the deed before an officer authorized by law to take acknowledgments of such instruments.

2d. That McClellan, the trustee, and John A. Brittenham, the husband of complainant, colluded together and induced complainant to sign the deed by fraudulent representations and the undue influence of her said husband.

3d. That McClellan, the trustee, colluded with Marston, the purchaser at the sale, and Tenney, his agent, and fraudulently withheld from complainant knowledge of the time of sale, and sold the lands at a ruinous sacrifice.

The decree of the court below was in favor of the complainant upon the last two grounds. It will, however, be necessary for us, in reviewing the record, to notice separately each of the grounds claimed for relief, for if either of them is well founded the decree must be affirmed. Complainant swears that she signed the deed in the presence of her husband, in their store, but that no one else was present, and that she never acknowledged it. There is, so far as we have been enabled to discover from the record, no other evidence tending to corroborate her on this point.

Appended to the deed is the certificate of Alonzo T. Pipher, a notary public in Piatt county, showing that complainant and her husband appeared before him and properly acknowledged the deed on the 3d day of May, 1870. In addition to this, his deposition was taken, and he swears to the truth of what is stated in his certificate.

We may, with much propriety, apply here what was said in Monroe v. Poorman et al. 62 Ill. 526: “If the testimony of a wife, who may or may not become a widow, is to prevail over her own deliberate act, done knowingly, and over the testimony of a disinterested officer taking the acknowledgment, there will be but frail security to titles; for, if such evidence is to prevail in one case, it must prevail in all cases; and whenever a woman can be found, and they are numerous, to swear against her own act, there is really no security in titles derived in whole or in part from them.” To impeach such a certificate, the evidence should do more than produce a mere preponderance against its integrity in the balancing of probabilities--it should, by its completeness and reliable character, fully and clearly satisfy the court that the certificate is untrue and fraudulent. The evidence before us on this point falls short of producing such an effect upon our minds.

Upon the second point, we fail to find sufficient evidence to satisfy us that there was any collusion between the trustee and the husband of complainant, for the purpose of improperly inducing her to sign the deed. McClellan was not present when the deed was signed. According to complainant's own version, the deed was drawn up and ready to be signed, and presented to her two months before she signed it; but, she refusing, it remained in her house until she finally signed it. It is not shown that McClellan even knew that she was reluctant to sign it, but, on the contrary, the only evidence in this respect is, that he was informed she was willing to sign it. This he swears, and it is not contradicted. She swears, indeed, that McClellan told her “they did not intend to press for payment--it was only security they wanted.”

In the view we have taken of the evidence on the point of the acknowledgment of the deed, it follows that her claim that she did not know the contents of the deed when she executed it, is not sustained by the evidence, and we must assume that she acknowledged to the officer that she was acquainted with its contents. Being acquainted with its contents, she knew that the trustee was authorized to sell on the non-payment of the note at its maturity. She knew when it matured, and is legally chargeable with knowledge that the rights of Farwell & Co. and the duties of the trustee were fixed by the terms of the deed; and it is, therefore, impossible that the remark she attributes to McClellan could, in a legal sense, have affected her conduct. Indeed, as a matter of fact, we can scarcely doubt that, when she signed the deed, she fully and correctly realized the jeopardy in which it placed her property. She says she refused, for a couple of months, to sign it, and on several nights she and her husband sat up all night contending about it. That all this could have happened in regard to an instrument about the contents of which she had no knowledge, and which she supposed was to have only such obligatory force as was to be imputed from the remarks attributed to McClellan, is so extraordinary that it fails to enlist our credulity. Moreover, McClellan, who testifies with seeming candor and fairness, and who has much less interest in the event of the suit than has complainant, positively denies that he ever talked with complainant about the deed, or that he made any promise whatever to her.

The evidence is full to the point that complainant signed the deed with great reluctance, and that she did so only after much importunity from her husband, and many threats on his part to leave her if she did not sign it; and if the evidence connected McClellan and Farwell & Co. with this conduct of his, and she had made application within a reasonable time to have the deed canceled for that cause, we should not hesitate in holding that she was entitled to do so.

A deed executed by a wife for the sole purpose of preserving her marital relations with her husband and peace in her home, can not be said to be freely and voluntarily executed. But the law, in giving the wife the same dominion over her separate property that...