Moyer v. Dodson
| Decision Date | 22 June 1905 |
| Docket Number | 18 |
| Citation | 61 A. 937,212 Pa. 344 |
| Parties | Moyer v. Dodson, Appellant |
| Court | Pennsylvania Supreme Court |
Argued February 8, 1905
Appeal, No. 18, Jan. T., 1905, by defendant, from judgment of C.P. Del. Co., June T., 1903, No. 155, on verdict for plaintiff in case of Jacob S. Moyer v. Lillian R. Dodson. Affirmed.
Scire facias sur mortgage. Before JOHNSON, P.J.
At the trial it was contended that the mortgage was procured from the defendant by duress and coercion and by a threat of criminal prosecution against her husband. When Mrs. Dodson was on the stand she was asked this question:
"
Mr Rumsey: Objected to.
The Court: I am inclined to think this is a very close proposition. I will maintain this ruling. It may be that as the information came to her by reason of the interview or the agreement between the mortgagee and her husband you are entitled to have all that took place as part of the res gestae, but for the present I rule it out. Exception. [2]
" Objection.
Mr Rumsey: Objected to unless the information was stated to this good lady in the presence of the mortgagee, the plaintiff in this suit.
The Court: Objection sustained. Exception. [4]
Mr. Fronefield: I will put the question in another way so as to get ourselves straight on the record. Will you tell us what inducements or threats, if any, were made by your husband at the time that you consented to sign the mortgage?
Mr. Rumsey: Objected to.
Mr. Rumsey: Not unless it was in the presence of the plaintiff. I object, therefore, to the question as it now stands.
The Court: You are seeking to get in evidence conversation between parties to this mortgage -- that is, the mortgagors, out of the presence of the mortgagee?
Mr. Barrington: Yes, sir. The mortgagee, of course, was not present when Mr. Dodson demanded that his wife execute the mortgage. There is no question about that, but the mortgagee -- and we will bring our proof later legally to satisfy that point -- is brought home with knowledge of the means that Mr. Dodson must use to obtain this mortgage. He demanded it of him under certain terms which left no alternative to do but get it or go to jail. We have proved he said that. Now, we can certainly prove by the same witness he told his wife that. We can follow that right up.
The Court: I will have to exclude what took place between Mr. Dodson and his wife in the absence of the plaintiff. Exception. [6]
Leon Dodson was asked this question:
Mr. Rumsey: I object to that unless the conversations were in the presence of the plaintiff, J. S. Moyer.
The Court: Were they in the presence of the plaintiff?
Mr. Fronefield: They were not in the presence of J. S. Moyer.
The Court: That is objected to?
Mr. Rumsey: That is objected to.
The Court: Objection sustained. Exception. [7]
The court gave binding instructions for plaintiff.
Verdict and judgment for plaintiff for $2,048.65. Defendant appealed.
Errors assigned among others were (2-7) rulings on evidence, quoting the bill of exceptions; (8) in giving binding instructions for plaintiff.
The assignments of error are overruled and the judgment is affirmed.
Boyd C. Barrington, with him W. Roger Fronefield, for appellant. -- The court erred in rejecting the testimony offered to prove what induced the defendant to execute the mortgage, and the purpose for which it was given: Schrader v. Decker, 9 Pa. 14; Louden v. Blythe, 16 Pa. 532; Michener v. Cavender, 38 Pa. 334; McCandless v. Engle, 51 Pa. 309; Heeter v. Glasgow, 79 Pa. 79; Snyder v. Willey, 33 Mich. 483; Cridge v. Hare, 98 Pa. 561; Kaufmann v. Rowan, 189 Pa. 121; Bank v. Cox, 62 N.Y.S. 314.
The mortgage executed by Lillian R. Dodson, being given for the purpose of stifling a threatened criminal prosecution of her husband, is invalid: McGrory v. Reilley, 2 W.N.C. 587; McGrory v. Reilley, 8 W.N.C. 104; Riddle v. Hall, 99 Pa. 116.
Horace M. Rumsey, with him Frank Jacobs and I. Hazleton Mirkil, for appellee. -- When a married woman has mortgaged her separate estate for her husband's indebtedness, and the mortgage has been duly executed and acknowledged by the married woman and her husband, and suit is brought upon the mortgage, upon the trial thereof, the court will not permit the married woman or her husband to testify as to conversations between them, in the absence of the mortgagee and without notice to him, which the married woman alleges constituted the coercion and duress which impelled her to execute the mortgage, and whereby it was invalidated: Kaufmann v. Rowan, 189 Pa. 121; Oppenheimer v. Wright, 106 Pa. 569; Brewing Co. v. Reinsburrow, 197 Pa. 67; Lewars v. Weaver, 121 Pa. 268; Pioso v. Bitzer, 209 Pa. 503; Highlands v. P. & R. Ry. Co., 209 Pa. 286; Sower v. Weaver, 78 Pa. 443; Bitner v. Boone, 128 Pa. 567.
If threats were made of a criminal prosecution, not commenced, whereby a money settlement was secured of a lawful debt, that would not constitute fraud, coercion or duress under the law of Pennsylvania, so as to invalidate the mortgage: Swope v. Jefferson Fire Ins. Co., 93 Pa. 251; Saalfield v. Manrow, 165 Pa. 114; Phillips v. Henry, 160 Pa. 24; McGrory v. Reilley, 2 W.N.C. 587; Snyder v. Willey, 33 Mich. 483; Pearce v. Wilson, 111 Pa. 14.
Before MITCHELL, C.J., DEAN, BROWN, MESTREZAT and POTTER, JJ.
The mortgage in this case was executed in due form by Mrs Dodson, after an examination separate and apart from her husband; and it is admitted that the mortgagee was not present at the interview when it is claimed that fraud and coercion were used to procure its execution by Mrs. Dodson. No evidence was offered to show that the mortgagee had notice of the alleged fraud or coercion, nor did it appear that he was in possession of facts which should have led him to believe that the mortgage had been procured from Mrs. Dodson by such means. Dodson testified he did not remember that, at the interview between the parties, the plaintiff and his counsel directed...
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