Shelby v. Burtis

• Decision Date: 01 January 1857
• Citation: 18 Tex. 644
• Parties: JOHN O. SHELBY AND WIFE v. NATHANIEL W. BURTIS.
• Court: Texas Supreme Court

18 Tex. 644

JOHN O. SHELBY AND WIFE

v.NATHANIEL W. BURTIS.

Supreme Court of Texas.

1857.

Where an injunction is obtained against the enforcement of a deed of trust given to secure a promissory note, it is not a contempt of court for an assignee of the note, to whom it was assigned before the injunction was obtained, and who was no party to the injunction suit, to bring suit on the note, and pray an order of sale of the property mentioned in the deed of trust.

If the objection be taken at the proper time, the trustee, in a deed of trust given to secure the payment of a note, with power to sell, should be made a party to a suit to recover judgment on the note, and sell the property to satisfy the judgment; but the objection cannot be raised for the first time in the supreme court.

An objection for the want of proper parties cannot be taken on general demurrer.

It was said in Hollis and Wife v. Francois & Border, that these mortgages by the wife, of her separate property, for the benefit of the husband, should be closely scrutinized, and they must be free from symptoms of fraud, coercion or undue influence.

The undue influence from which the wife is relieved, and which has the effect of invalidating her acts, is believed to arise mainly from some exertion of the power which the husband has over her person and property, so as virtually to deprive her of her capacity as a free agent; and not, as in this case, where appeal is made merely to her sympathies, to relieve the property of her husband from a temporary pressure.

That the wife was told by an attorney employed by her husband, that her signing certain notes, and a deed to secure them in her separate property, was a mere matter of form, and that she would not be bound by them, and that the creditor was present and knew the most, if not, as she believes, all the facts stated in her answer, is not a sufficiently distinct allegation that the creditor knew that she had been advised by her husband's counsel as alleged. 6 Tex. 208;21 Tex. 637.

Appeal from Polk. Tried below before the Hon. Peter W. Gray.

Suit by appellee against appellants, commenced April 16th, 1855, on two promissory notes, one for $200, and the other for $1350, and to foreclose a mortgage on four slaves, given to se cure the same. Both notes were dated November 16th, 1853; the $200 note was due January 1st, 1854, and the other January 1st, 1855; payable to the order of Elbridge Walbridge. The mortgage was a conveyance of the slaves in trust to D. D. Moore, with power to sell and pay the notes, if not paid at maturity. The petition alleged that the notes and mortgage were, for value received, transferred by Walbridge to plaintiff on the 19th of March, 1854.

On the 8th of January, 1855, the appellants had commenced suit in the same court, against Walbridge and others, to restrain the collection of said notes, and the enforcement of said deed of trust, and had obtained a preliminary injunction; but the plaintiff in this suit had not been made a party to that suit.

The defendants moved to dismiss this suit, on the ground that it was commenced in contempt of the injunction, there being an allegation that plaintiff had notice thereof. Motion overruled.

The answer of J. O. Shelby is not important. The answer of Rebecca, his wife, as finally amended, was as follows: Now comes Rebecca S. Shelby, one of the defendants in the above entitled cause, by leave of the court first had, and amends the former answer herein filed, in the manner and substance as follows: she would first represent unto your honor, that her husband, her co-defendant, has refused to join her in exhibiting to the court the facts contained in the following answer, which, as your honor will perceive, are so essential to her defense, and which she would not make known to the court if it were not that it is necessary to her protection and support and actually essential to her defense. This defendant would state that one Elbridge Walbridge held and controlled an execution in the hands of the sheriff of Polk county, before and at the time of the signing the notes and deed of trust and the acknowledgment of the deed of trust sued upon; that said execution was against her co-defendant and his property, and not against this defendant; that said Walbridge was thus holding this execution in terror over the said John O. Shelby, and was urging him to settle the same in some way by giving security to him for the same; that said Walbridge was threatening the said John O. Shelby that if he did not give the security desired he would levy upon and sell a bulk of seed cotton, which was valuable, and of the value of two thousand dollars, under said execution, in ten days, which would result in great loss to the said John O.; that the said John O., being thus preplexed, harassed and distressed, approached this defendant and asked her to sign the notes and deed of trust sued upon herein, and thus to settle said execution. This defendant refused to sign said notes and deed of trust; but, the said Walbridge threatening as aforesaid, urged her husband, her co-defendant, to continue his entreaties and thus secure said debt as he desired. But this defendant refused, until, being overcome by the entreaties of her co-defendant and his urgent solicitations to join him in said notes and deed, and not having time to deliberate, think or reflect upon the subject, and being told, as this defendant was, by William A. Palmer, an attorney at law, employed by her co-defendant, that her signing said notes and deed was a mere matter of form, and that she would not be bound by them, or either of them, she, this defendant, did sign said notes and said deed of trust, and did acknowledge said deed of trust as certified by the notary. This defendant would further state that said Walbridge was present and knew the most, if not, as this defendant believes, all the facts above stated, and knew all of the circumstances by which she was surrounded at the time of the execution of the notes and deed of trust sued upon. The defendant further states that there was a combination against her to secure her signature and acknowledgment to the instrument sued on, between the said Walbridge, the said attorney and her said co-defendant, the latter being urged to the same by his situation; that undue advantage was taken of her; that undue influence was exercised upon her, and improper advice given her; that she did not have time to consider the subject. All of which is above shown. Wherefore this defendant says that her signature to said notes and deed, and her acknowledgment to said deed were procured by fraud; that said Walbridge knew of said fraud at the time he received said notes and deed, and this defendant believes that he was a party to said fraud, urging the rest to procure her signature at all events. Wherefore this...