Morrill v. Amoskeag Sav. Bank

• Decision Date: 07 November 1939
• Parties: MORRILL et al. v. AMOSKEAG SAV. BANK et al.
• Court: New Hampshire Supreme Court

9 A.2d 519

MORRILL et al.

v. AMOSKEAG SAV. BANK et al.

Supreme Court of New Hampshire. Hillsborough.

Nov. 7, 1939.

[Copyrighted material omitted.]

Exceptions from Superior Court, Hillsborough County; Burque, Judge.

Bill in equity by Clara B. Morrill and another against Amoskeag Savings Bank and another for the cancellation of two trust agreements on the ground that they were procured by fraud and duress. The trial court granted a motion to dismiss the bill, and the plaintiffs bring exceptions.

Exceptions overruled.

Bill in equity, for the cancellation of two trust agreements on the ground that they were procured by fraud and duress. At the close of the plaintiffs' evidence and after their counsel had assured the court that they had no further evidence to offer, counsel for one of the defendants on behalf of both moved that the bill be dismissed "first, as a matter of law, and, second, as a matter of fact." In elaboration of his motion, he stated: "We are asking Your Honor not only to rule as a matter of law that the allegations and evidence are insufficient to support any finding for the plaintiffs, but we are asking Your Honor for a finding on the merits that, as a matter of fact, the evidence adduced on behalf of the plaintiffs is unbelievable, and is not sufficient to warrant any finding of fraud or duress on the part of either defendant." After hearing arguments from counsel on both sides, the court granted the defendants' motion with the remark "that the reason for the dismissal of the bill * * * is that the court finds that, in as much as it may be a finding of fact, and, in as much as it may be a ruling of law, the evidence introduced by the plaintiffs in support of the contentions made * * * is not sufficient to maintain the bill." In the colloquy which followed this finding and ruling the court made it clear that in reaching his conclusion he had weighed and considered all of the evidence which had been presented to him. To this ruling and finding the plaintiffs duly excepted, and their bill of exceptions was allowed by Burque, C. J.

The facts are stated in the opinion.

Thorp & Branch, of Manchester (F. W. Branch, of Manchester, orally), for plaintiffs.

Warren, Wilson, McLaughlin & Wiggin and Wyman, Starr, Booth, Wadleigh & Langdell, all of Manchester (L. E. Wyman, of Manchester, orally), for defendant Amoskeag Sav. Bank.

McLane, Davis & Carleton, of Manchester (J. P. Carleton, of Manchester, orally), for defendant Davis.

WOODBURY, Justice.

It has for many years been the rule in this state that, in the absence of a statute, the test of the validity of a form of procedure is not the date of its invention (Walker v. Walker, 63 N.H. 321, 326, 56 Am.Rep. 514), but whether or not it is what justice and convenience require. La-Coss v. Lebanon, 78 N.H. 413, 417, 101 A. 364, and cases cited; Hoyt v. Insurance Co., 80 N.H. 27, 30, 113 A. 219; Watkins v. Boston & M. Railroad, 81 N.H. 363, 367, 127 A. 701; Derosier v. New England Tel. & Teleg. Co., 82 N.H. 405, 406, 134 A. 719; Parker-Young Co. v. State, 83 N.H. 551, 560, 145 A. 786; Wisutskie v. Malouin, 88 N.H. 242, 243, 186 A. 709. It is not necessary, however, for us to consider the legality of the procedure adopted by the trial court in the case at bar because counsel for the plaintiffs made no objection and took no exception to it and this acquiescence on their part amounts to a waiver by them of any possible irregularity which there may be therein. Burleigh v. Wong Soon Leun, 83 N.H. 115, 139 A. 184; Morin v. Insurance Co., 85 N.H. 471, 160 A. 482; Vidal v. Errol, 86 N.H. 585, 586, 172 A. 437.

The question before us on this appeal is twofold. It is first, whether there is in the record any evidence of either fraud or duress practiced upon the plaintiffs by the defendants, and second, if such evidence be found, whether it is of such a nature that its acceptance is compelled as a matter of law.

Briefly summarized the facts are as follows: On September 1, 1934, and for many years prior thereto, the plaintiff Morrill was the owner of three parcels of land on South Main and Pleasant Streets in Concord. Two of these parcels, one known as the Foster Block and the other as the Optima Block, were mortgaged to the defendant bank, of which the defendant Davis was treasurer, and the third, known as the Bellevue Block, was mortgaged to the Iona Savings Bank of Tilton. On the above date the interest on both mortgages was considerably in arrears and there was also a substantial sum due for back taxes on all three parcels. This situation prompted the defendant Davis to request both plaintiffs (the plaintiff Payne is the daughter of the plaintiff Morrill) to call to see him at his office in the bank. They came and according to their version of what then transpired, Davis informed them that unless Morrill, who was then well along in years and in poor health, would at once convey the Foster and Optima Blocks to her daughter the bank would be forced to foreclose its mortgage within three weeks. Both plaintiffs assert that no further conversation on the subject was permitted by Davis and that when they started to remonstrate with him, he turned his back and went away.

On September 7, 1934, the plaintiffs consulted an attorney at law and he drew for them a warranty deed from Morrill to Payne of both the Foster and Optima Blocks, which Mrs. Morrill then executed, and also a will for Mrs. Payne in which she left these properties to her mother. He also drew an agreement for Mrs. Payne in which she recited that she would keep the above mentioned provision of her will in force and that she would for a consideration hold and manage the properties for her mother's benefit. Both of these latter instruments were duly executed, but their existence was not made known to Davis until many months later. The deed, soon after its execution, was taken by Payne to Davis and he then, according to Payne's testimony, told her that she was in no better position than her mother and that unless she in turn conveyed the properties to him to hold in trust for her, her mother and the bank, the bank would proceed with its foreclosure. Mrs. Payne acceded to this proposal and accordingly on October 19, a deed from her to Davis was prepared and also a declaration of trust by him.

This trust agreement, after reciting the above conveyance of the properties by Payne to Davis and the mortgage thereon went on to provide that Davis was to hold them in trust with full power in his sole discretion to manage, control, lease and let them or any part of them upon such terms and conditions and for such rental as he might deem best, that he was to collect the rents and income therefrom, and that he, also in his sole discretion, might make improvements and additions thereto. The instrument also gave Davis power and authority to pay all bills for taxes, insurance and other charges against the property then due, and to borrow on the security of the property such sums as might be necessary for any of the foregoing purposes, he to "be allowed or credited interest upon all such payments at the rate of six per cent per annum computed semi-annually." Out of the gross income of the properties Davis was to "deduct five per cent thereof as his compensation for services," and he was to pay "all taxes, water rates, charges for insurance and repairs, and all other reasonable and necessary expenses in connection with the management and operation of said property." Any balance of income remaining after the above payments was to be allocated by Davis, in his sole discretion as to amounts, to the payments of principal and interest on the sums borrowed or furnished by him and to the payment of the principal, with interest at the rate of six per cent. on the mortgage to the defendant bank. It was further agreed by Davis that if Payne within ten years paid "all sums expended by him as aforesaid, with interest as aforesaid, together with the full amount then due said Amoskeag Savings Bank as aforesaid, and all other charges or expenses incurred by him less the deductions herein provided," that he would reconvey the properties to her, but, if she should make all the above payments within five years, then Davis was to receive "as additional compensation for his services, five per cent of the total amount expended by him for additions and repairs to and upon said property." In default of redemption by Payne within ten years Davis agreed to convey the properties at the end of that time to the defendant bank. The trust instrument concludes with an agreement by Davis to render semi-annual accounts of his stewardship and with a recitation to the effect that both Payne and the bank agree "to the foregoing trust and to the terms and conditions hereinbefore set forth." The plaintiff Payne signed and acknowledged the instrument and so did the defendant Davis and his wife, but, although provision was made for signature by the bank, no one signed in its behalf.

At the time when the above trust was created the Foster Block was old and in bad repair and the trustee procured an estimate from a reputable contractor as to the cost of needed repairs and renovation. This cost, in the trustee's opinion, was so great, considering the age of the building, as to be unwarranted and so instead of repairing it he had it razed and a new one built in its place at a cost of approximately forty thousand dollars. The cost of this new building was, in the first instance, defrayed by a construction loan from the bank to Davis in his capacity as trustee.

During the early fall of 1935 it was agreed that the Bellevue Block should also be included in the trust. To accomplish this Mrs. Morrill conveyed it to her daughter and Mrs. Payne conveyed it to Davis who in turn executed a second declaration of trust. This second trust instrument was in all material respects similar to the earlier one except that in it the defendant bank was not mentioned and that...