Pierce v. Feagans

• Decision Date: 06 February 1889
• Parties: PIERCE et al. v. FEAGANS et ux.
• Court: U.S. District Court — Eastern District of Missouri

39 F. 587

PIERCE et al. v. FEAGANS et ux.

United States Circuit Court, E.D. Missouri, Northern Division.

February 6, 1889

W. J Patterson, for complainants.

B. R Dysart, for defendants.

THAYER J.

This is a bill to foreclose a deed of trust in the nature of a mortgage on property of Mrs. Addie L. Feagans, situated in Macon county, Mo. The deed of trust purports to have been acknowledge by Mrs. Feagans and her husband on July 25, 1882 to secure a loan of $2,000, to mature on July 1, 1887. Interest was duly paid on the loan until July 1, 1885, since which date no payments, either of principal or interest appear to have been made. The defenses interposed are twofold: First, a plea of lis pendens; and, second, that Mrs. Feagans' acknowledgment was not taken by the notary before whom the deed of trust was acknowledged, in substantial conformity with the laws of this state in force when the acknowledgment was taken.

1. The first of the above defenses cannot avail the defendants. The suit relied upon as establishing the defense of lis pendens was a suit brought by Mrs. Feagans and husband in the circuit court of Macon county, Mo., against J. B. Watkins, trustee in the deed of trust, and against Francis T. Pierce and his attorney, to restrain the trustee from selling the mortgaged premises under a power of sale contained in the mortgage. The parties to the two suits are not identical, and the relief sought is not the same. This of itself is sufficient to defeat the plea. It is true that, under the practice which obtains in the state court, the complainants, who are defendants there, might file a cross-petition, and pray for a foreclosure of the mortgage, but they are not bound to do so. Being non-residents they are entitled to invoke the jurisdiction of the federal court for the foreclosure of their mortgage, and they are not deprived of that right merely because a suit has been brought against them in the state court, of such nature that they might file a cross-bill, and obtain similar relief there. Manufacturing Co. v. Scutt, 22 F. 710. Again, the suit in the state court is pending in a different jurisdiction. It is now well settled that the pendency of a suit in a state court cannot be taken advantage of by way of a plea of lis pendens, to defeat a suit of the same nature, and between the same parties, in the federal courts. The two courts, though not foreign to each other, belong to different jurisdictions in such sense, that the doctrine of lis pendens is not applicable. Stanton v. Embrey, 93 U.S. 554; Gordon v. Gilfoil, 99 U.S. 169-178; Sharon v. Hill, 22 F. 28. And, lastly, for a technical reason the defense of lis pendens must be ignored. It is made by answer, and not by plea. The defense in question, being in the nature of a plea in abatement, should be made by plea, and not by answer, and, not having been so made, is waived. Story, Eq. Pl. Secs. 708, 735; Equity Rule No. 39.

2. Passing to the second defense, it is well to note that it is not claimed in this case that any fraud or imposition was practiced on Mrs. Feagans to induce her to sign the deed of trust; nor is it claimed that her husband exercised undue influence over her, or that he so compelled her to sign it against her will. The money raised on the deed of trust or mortgage was needed to lift another prior mortgage on the same property, which appears to have been a valid lien; and the greater part of the money was so used. That Mrs. Feagans acted with the utmost freedom-- that her will was in no sense dominated by that of her husband or any other person-- cannot be doubted. The sole complaint is that she did not acknowledge to the notary, separate and apart from her husband, that she executed the deed freely and without compulsion. The contention is that the notary's certificate that she did so acknowledge it is false. Since the leading case of Wannell v. Kem, 57 Mo. 480, 481, holding that the certificate of a notary or other officer empowered to acknowledge deeds, is not conclusive evidence of the facts therein stated, but may be impeached, and the deed thereby nullified in so far as it affects the wife's interest in the lands conveyed, even though no fraud, imposition, or duress was actually practiced on her,-- the state courts have frequently had occasion to consider the kind and degree of proof that ought to be required to overcome such certificates, even conceding that they are only prima facie evidence of the facts attested. Thus, in Bohan v. Casey, 5 Mo.App. 110, it was said that the evidence to impeach a certificate of acknowledgment of a married woman ought to be 'clear and convincing,' so as to satisfy the court that the certificate is false. It was further said in the same case that, when the testimony of the complainant alone is relied upon to impeach a certificate, it ought to be supported by a 'concurrence of material circumstances.' In Morrison v. McKee, 11 Mo.App. 594, the same court held that they would not set aside a finding of the lower court in favor of the validity of a deed, in the absence of any evidence of fraud, although the testimony both of the grantor and the notary tended strongly to contradict the certificate of acknowledgement. In Biggers v. Building Co., 9 Mo.App. 210, where there was no evidence of fraud or collusion between the grantee and the notary, and no circumstances tending to corroborate the testimony of the complainant contradicting the certificate, the court held that the complainant's testimony did not make out a prima facie case as against the certificate. In Rust v. Goff, 94 Mo. 519, 7 S.W.Rep. 418, it was held that the evidence necessary to impeach and overthrow a certificate of acknowledgment should be 'clear, cogent, and convincing;' and the same remark was repeated in Mays v. Pryce, 95 Mo. 612, 8 S.W.Rep. 731. In most, if not all, of the cases in the state courts wherein a successful assault has been made upon a certificate of acknowledgment that was in due form and by the proper officer, there is to be found either some evidence of fraud or imposition practiced on the wife such as was well calculated to excite suspicion of the verity of the notarial certificate, or some evidence of collusion between the parties, or proof of circumstances strongly tending to show that the officer taking the acknowledgment did not comply with the law, or a general concurrence of testimony on the part of all concerned in the transaction that the law in some material...