Mohler v. Andrew
| Decision Date | 14 February 1928 |
| Docket Number | 38843 |
| Citation | 218 N.W. 71,206 Iowa 297 |
| Parties | D. W. MOHLER et al., Appellants, v. L. A. ANDREW, State Superintendent of Banking, et al., Appellees |
| Court | Iowa Supreme Court |
REHEARING DENIED JUNE 26, 1928.
Appeal from Chickasaw District Court.--W. L. EICHENDORF, Judge.
Action in equity, to set aside a certain note, and mortgages and other securities given by the plaintiffs to the defendants to secure the same. The note was given as evidence of the amount due on an assessment of certain bank stock, a portion of which was owned by the plaintiff Matilda Mohler, and a portion by her minor son. The trial court dismissed the plaintiffs' petition.
Affirmed.
R Feyerbend and Marty & Butler, for appellants.
John Fletcher, Attorney-general, and Geiser, Donohue & Geiser, for appellees.
One Herbster owned 168 shares of the capital stock of the Darrow Trust & Savings Bank of New Hampton, Iowa. He died testate in August, 1917. By his will he bequeathed 68 shares of said capital stock to his widow, and 100 shares to his son, Wesley Herbster. He devised certain real estate to each of said parties. The will provided that the property left to the son should be turned over to testator's wife, to be held by her in trust for the said Wesley until he should arrive at the age of 28 years, when the trustee was to turn it over to him. The widow remarried, and she and her husband are plaintiffs and appellants in this action. On July 23, 1925, the Darrow Trust & Savings Bank was closed, and the appellee was duly appointed receiver of said bank. One Kaster was the state examiner in charge of the said bank after it closed, and, as we understand the record, was acting under orders of the appellee as receiver in collecting and securing the assets of said bank. In September, 1925, an assessment of 100 per cent was levied upon all of the outstanding stock of said bank. Shortly thereafter, the note in suit was executed by the appellants, and delivered to said Kaster. The note was secured by certain collateral securities, a portion of which belonged to the appellant Matilda, and a portion to her son, Wesley. The note was also secured by mortgages upon the appellants' homestead and upon certain real estate belonging to Matilda, located in South Dakota. Enough has been collected by the appellee upon the said securities so pledged to pay the amount of the assessment of $ 6,800 levied against the stock owned by the appellant Matilda. After said note had been given, the appellants notified the appellee that they repudiated the same, and refused to pay any portion of said note except the said $ 6,800.
I. Appellants contend that the said note and mortgage were obtained from them by duress, and that because thereof, the same should be vacated, set aside, and canceled. The appellant Matilda is a woman 51 years of age, had been educated in the public schools through the eighth grade, had worked in her father's store as a clerk, and after her husband's death, had served as a director in said bank, and had attended meetings of said board of directors. On September 2d, she had suffered an injury from an automobile accident, that had required the attention of a physician, and on September 23d, at the time the note was given, was still suffering pain in connection with said accident. Kaster, the bank examiner, telephoned her to come to the bank for a conference with regard to the matter of said assessments against her stock and that of her son, and in response to said telephone call, Matilda and her husband went to the bank, where they remained for several hours, before the note and the assignment of securities were executed and delivered. At said time, Matilda had a safety deposit box in said bank, which contained about $ 25,000 worth of securities; and it is contended that the examiner refused to allow her to remove said box or the securities therein contained until the said note and mortgages had been executed and delivered. The attorney for the receiver was called into the conference, and there is evidence to the effect that he advised the appellants that, if they gave the note and securities, it must be of their free will. The evidence is in direct conflict as to much that was said and done during the transaction at the bank. It is unnecessary to relate it. The burden rested upon the appellants to establish that such duress was exerted as rendered the instruments void in the hands of the appellee. We think it must be held, under this record, that the appellants have failed to carry the burden which the law imposes upon them in this regard. Mere advice, argument, importunity, suggestion, or demand is not sufficient to constitute such duress as to vitiate an instrument duly executed by competent persons who are fully advised regarding the transaction in which they are engaged. The appellant Matilda was accompanied by her husband, who was present during all of the transactions. She had counsel living in the same city, and no obstacle was placed in the way of her obtaining independent advice. On the contrary, there is evidence tending to show that she was admonished that she should obtain such advice before executing the papers. The record does not present such a case as would justify us in reversing the action of the trial court in holding that the appellants had failed to establish their claim of duress and compulsion in the execution of said instrument. Regarding the law applicable to such a situation, see King v. Williams, 65 Iowa 167, 21 N.W. 502; Cantonwine v. Bosch Bros., 148 Iowa 496, 127 N.W. 657; Galusha v. Sherman, 105 Wis. 263 (81 N.W. 495); Layer v. Layer, 184 Mich. 663 (151 N.W. 759).
II. Appellants contend that the said note and mortgages were executed without consideration, as to the amount of said note which represents the assessment against the minor, Wesley. There is evidence tending to establish the fact that the bank examiner was threatening to institute suit to recover said assessment. The assessments were due and payable on demand. By the execution of said note, the appellant Matilda obtained an extension of time on her own indebtedness for a period of six months. The extension of the time of the payment of the indebtedness due from Matilda was such a consideration as would support her promise to pay the obligation of her son Wesley. 12 Corpus Juris 324. The question as to whether or not Matilda, as trustee of the property of her minor son, Wesley, had power or authority to bind his property by the execution of mortgages, or the...
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