Smith v. Commercial Bank of Jasper

• Decision Date: 13 February 1919
• Citation: 77 Fla. 163,81 So. 154
• Parties: SMITH et al. v. COMMERCIAL BANK OF JASPER.
• Court: Florida Supreme Court

81 So. 154

77 Fla. 163

SMITH et al. v. COMMERCIAL BANK OF JASPER.

Florida Supreme Court

February 13, 1919

Appeal from Circuit Court, Hamilton County; M. F. Horne, Judge.

Bill to foreclose a mortgage by the Commercial Bank of Jasper against John Smith and another. Decree for complainant, and defendants appeal. Affirmed.

Syllabus by the Court

SYLLABUS

Threats of a lawful arrest for an offense which has actually been committed is not in itself a sufficient ground for the cancellation of a mortgage, which has been executed as a result of such threats, and made to secure the maker of the threats for the loss occasioned to him by the commission of such crime.

A mortgage will not be set aside because of duress exercised upon the mortgagor in its procurement, such duress not being participated in by the mortgagee.

The fact that a wife was induced to execute a mortgage by fraud and deception on the part of her husband in which the mortgagee did not participate and of which he had no knowledge does not affect its validity.

COUNSEL C. D. Blackwell, of West Palm Beach, for appellants.

S. S Sandford, of Jasper, for appellee.

OPINION

WEST J.

This is an ordinary mortgage foreclosure. The mortgage sought to be foreclosed covers certain described lots in the town of Jasper. The bill to foreclose is in the usual form, and while the mortgage is not copied in the record, it is referred to in the bill as a mortgage deed, and the bill recites that the original mortgage is attached to and made a part of the bill. We assume therefore that it is in proper form and duly executed.

The decree was for the complainant, and the defendants appeal.

Two questions are presented for our consideration. The first assignment of error questions the soundness of the order granting the motion to strike a certain paragraph from the answer of the defendant John Smith. By the stricken paragraph of his answer this defendant averred:

That at the time of the execution of the mortgage sought to be foreclosed, he was president of the complainant bank. 'That the duly qualified bank examiner commissioned to examine state banks in the state of Florida, pursuant to said commission, came to examine complainant bank. The notes described in said amended bill of complaint and also described in said mortgage were then and there held by complainant bank, and the said examiner then and there informed this defendant that the said notes were unsatisfactory paper for said complainant bank to have and blamed this defendant with the fact that complainant then and there had such paper among its assets and led this defendant to believe that he had violated the law in permitting said bank to have such paper among its assets, and told this defendant that he had to give said mortgage to secure the payment of the same, and he led this defendant to believe that he would prosecute him criminally if he did not execute said mortgage, and this defendant did then and there, by reason of the statements made to him by said examiner, believe that he violated the banking laws of the state of Florida, and had made himself liable to criminal prosecution, and this defendant did then and there, by reason of the statements made to him by said examiner, believe that said examiner was going to prosecute him if he did not execute said paper, and this defendant avers that it was through fear of this prosecution at the hands of said examiner he executed said mortgage at the request of said examiner.'

There are two defects in this paragraph of the answer. In the first place, there is no allegation that there was no basis for the alleged threatened prosecution in the transactions referred to between this defendant and the bank (1 Jones on Mortgages, § 623; Englert v. Dale, 25 N.D. 587, 142 N.W. 169); and, in the second place, there is no allegation that the mortgage was extorted from him by means of duress practiced upon him by the mortgagee (Robinson, Norton & Co. v. Randall, 147 Ky. 45, 143 S.W. 769; Moog v. Strang, 69 Ala. 98). It will be observed that the alleged prosecution that defendant feared was at the hands of a 'duly qualified bank examiner commissioned to examine state banks of the state of Florida.' There is no suggestion of a threat of prosecution by the complainant to whom the mortgage was given. There was therefore no error in this ruling.

The second assignment assails the order granting the motion to strike a paragraph of the answer of the defendant Florence...