Mortimer v. McMullen

• Decision Date: 24 April 1903
• Citation: 202 Ill. 413,67 N.E. 20
• Parties: MORTIMER v. McMULLEN.
• Court: Illinois Supreme Court

202 Ill. 413

67 N.E. 20

MORTIMER

v.McMULLEN.

Supreme Court of Illinois.

April 24, 1903.

Appeal from Appellate Court, First District.

Action by Lillie L. McMullen against Catharine Mortimer. From a judgment of the Appellate Court (102 Ill. App. 593) affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.A. K. Manning (Harvey B. Hurd, of counsel), for appellant.

Charles M. MacLaren, for appellee.

The following is a statement of the facts in this case made by the Appellate Court in deciding the case:

‘Appellee filed in the circuit court her bill to foreclose a mortgage made by appellant to secure her note bearing date July 28, 1898, for $2,610, payable to Martin D. and Milton D. Jones, one year after date, with interest at 7 per cent. per annum. The note recites that it is secured by real estate in Cook county, Ill. Appellant, October 30, 1899, answered, denying that she made either the note or the mortgage described in the bill. April 16, 1901, appellant filed an amended answer, in which she set up that the said note and mortgage ‘were procured from her by fraud, circumvention, undue influence, and surprise.’

‘Appellant also filed a cross-bill, in which she set up that the note and mortgage were obtained from her by surprise, fright, duress, and perfidy, and that ‘she did not know what papers she signed, but whatever she did sign was through fear and despair, and to get rid of said Jones brothers and their lawyer, and their torture.’ Appellant, by her cross-bill, prayed that all evidence of indebtedness against her be canceled upon payment by her of $300. The cross-bill having been answered, the cause was referred to a master to take testimony and report. The master's report was filed March 22, 1901. The master found that appellant, being, July 28, 1898, indebted to Martin and Milton Jones, executed to them the note and mortgage described in the bill filed by appellee; that, before the maturity of the note, the payees thereof sold the same to appellee for the full value of the same, then paid by said appellee to Milton and Martin Jones; that the claim of appellant that she was induced by fraud and duress to sign said note and mortgage is not sustained by the evidence; and that the prayer of the cross-bill should be denied, and the prayer of the complainant in the original bill be granted.'

The court rendered a final decree of foreclosure, overruling the exceptions to the master's report, finding the amount due according to the terms of the note secured by the mortgage, and ordering sale of the premises. An appeal was taken from the decree so entered by the circuit court of Cook county, to the Branch Appellate Court for the First District, and there the decree was affirmed. The present appeal is prosecuted from the judgment of affirmance so entered by the Appellate Court.

MAGRUDER, C. J. (after stating the facts).

After a careful examination of the evidence we are unable to say that the lower courts erred in the conclusions reached by them in this case. The testimony sustains the finding of the master that the execution of the note and mortgage, to foreclose which the present bill was filed, was not obtained by fraud and duress.

Fraud must be proved, and will not be presumed. Swift v. Yanaway, 153 Ill. 197, 38 N. E. 589. Fraud being alleged, it must be established by a preponderance of the evidence. Merchants' Nat. Bank v. Lyon, 185 Ill. 343, 56 N. E. 1083. Where a party assails a transaction upon the ground of fraud, the burden of proof is upon him to show the fraud. Schroeder v. Walsh, 120 Ill. 403, 11 N. E. 70. Fraud may be proved by circumstances, but it is not thereby established, unless the circumstances proven are so strong as to produce a conviction that the charge of fraud is true. Bryant v. Simoneau, 51 Ill. 324. Preponderance of evidence means the greater weight of evidence, and, where the evidence in its weight is equally balanced between the contending parties, the one holding the affirmative of the issue must fail Schroeder v. Walsh, supra. ‘If the evidence is so conflicting that no conclusion can be reached, the transaction must be sustained, upon the principle that the burden of proof is on the party who assails it, and, if he does no more than create an equilibrium, he fails to make out his case. * * * What amount or weight of evidence is sufficient proof of a fraudulent intent is not a matter of legal definition. If the evidence is admissible, as conducing in any degree to the proof of the fact, the only legal test applicable to it upon such an issue is its sufficiency to satisfy the mind and conscience, and produce a satisfactory conviction or belief. Carter v. Gunnels, 67 Ill. 270. The proof, however, must be satisfactory. It must be so strong and cogent as to satisfy a man of sound judgment of the truth of the allegation.’ Schroeder v. Walsh, supra.

In the case at bar, Martin D. Jones and Milton D. Jones held a judgment note for $2,500, executed to them by the appellant, Catharine Mortimer, and her nephew, Edson J. Davis. Judgment by confession was entered up upon this note against Davis and appellant in July, 1898, and execution was issued upon the judgment. As we understand the record, this judgment was for the sum of $2,610, including interest and costs, and the attorney's fee allowed by the terms of the judgment note. On July 28, 1898, Martin D. and Milton D. Jones, who are brothers, and brothers-in-law of Davis, went to the appellant, and told her that they had obtained judgment against her and her nephew upon the judgment note in question, and that, if she would execute to them a note and mortgage to secure the debt represented by the judgment, they would release the judgment, and not attempt to enforce the execution which had been issued thereon against her property. She preferred to execute the note and mortgage rather than have her property sold under the execution upon the judgment. There is no question, under the testimony, as to the fact that she did execute the note for $2,610, and the mortgage securing the same, which is sought to be foreclosed herein. Either the next day or a few days after she executed the note and mortgage to Martin D. and Milton D. Jones, they released the judgment upon the record, and filed in the proper place a formal written discharge of such judgment. Appellant claims that, when Martin D. and Milton D. Jones came to her and told her that they had a judgment against her, which was a lien upon and could be enforced against her property, she was surprised, and was induced to believe that she was obliged to execute the mortgage in order to save her property. We do not deem it necessary to enter into an analysis of the evidence, and of the statements of the different witnesses in reference to the conversations which took place between the parties at the time of the execution of the mortgage. It is clear to our minds that she was not induced by any fraud to execute the mortgage, nor was she under any duress when she did so. The allegation in her cross-bill, and the purport of her testimony, are that she executed the mortgage in order to escape the persecution of Martin D. and Milton D. Jones, and did it through fear and despair, and in order to get rid of them and be free from their presence. After July 28, 1898, when she executed the note and mortgage, she was not under the influence of Martin D. and Milton D. Jones for more than a year. During that time she took no steps to have the note and mortgage set aside as having been obtained by fraud and duress. On the contrary, some time in February or March, 1899, after the execution of the mortgage, she was informed, both by letter and in person, by one or both of the Jones brothers, that they desired to sell the mortgage to a third party, and they did actually thereafter sell it to the present appellee, Lillie L. McMullen. The appellant, when informed by them in February or March, 1899, of their desire to transfer the mortgage to a third party, loaned to them her abstracts of title to the property in question, in order that the proposed purchaser of the mortgage might be satisfied as to the title to the property. She manifested, at the time of this loan of the abstracts, no dissatisfaction with the mortgage, and made no complaint that it had been executed. Not until the...