Tapley v. Tapley

• Decision Date: 01 January 1865
• Citation: 10 Minn. 360
• Parties: MARY E. TAPLEY vs. GEORGE TAPLEY et al.
• Court: Minnesota Supreme Court

10 Minn. 360

MARY E. TAPLEYvs.

GEORGE TAPLEY et al.

Supreme Court of Minnesota.

Appeal from order of district court, Dakota County.

Action by plaintiff, a married woman, to cancel a conveyance of her real estate, in executing which she joined with her husband, as she alleges, under the influence of threats, ill-treatment, etc., on the part of her husband.

A verdict was rendered for plaintiff, and from an order denying defendants' motion for a new trial the appeal is brought.

Points and authorities for appellant: —

1. The court erred in denying the motion of the defendants to dismiss the action, on the ground that the plaintiff had no "status in court in her own name." The objection is one going to the jurisdiction of the court and can be taken advantage of at any stage of the proceedings. A married woman cannot come into court except in the manner prescribed by statute. Our statute has prescribed the manner, and our courts have given a construction to the same. Comp. Stat. 535, ch. 60, § 30; Wolf v. Banning et al. 3 Minn. [202]; Irvine v. Irvine, 5 Minn. [61, 65]; 24 How. Pr. R. 202.

2. The court erred in admitting all that portion of the plaintiff's testimony objected to by the defendants. The object of the testimony was two-fold: First, to show that the deed was not properly executed. Second, to show that it was obtained by duress. It is incompetent for the plaintiff to impeach the execution of the deed, as her cause of action is based upon the proper execution of the deed as a conveyance. It is incompetent for a witness to swear to his conclusions or intentions; the intent must be arrived at by the jury from evidence showing the acts of the parties and the facts and circumstances connected with the case. Greenl. Ev. § 434; Morehouse v. Mathews, 2 N. Y. 514; Rich v. Jackway, 18 Barb. 357; Jefferson Ins. Co v. Cotheal, 7 Wend. 72, 78. As to leading questions see 1 Greenl. Ev. § 434; 2 Phil. Ev. 401, 402, 403; People v. Mather, 4 Wend. 229, 247, 248.

3. The objections to the introduction of the letters of Walker to Tapley, and the testimony of G. W. Tapley as to the subject-matter of said letters, were well taken. They were written after the commencement of the action, and in reference to a matter which had nothing to do with this case. The question whether Walker had notice or not was immaterial, as it was admitted by the pleadings that there was no new consideration for the deed from Carll to Walker, but that it was given for the payment of an old debt. The natural tendency of the testimony was to prejudice the jury against the defendant, and being improperly admitted, is a good cause for granting a new trial.

4. The verdict was against law and evidence, and a new trial for that cause should be granted. The prayer of the complaint is that the deeds be set aside and declared void on the ground that they were obtained by fraud and duress, and those were the only two material issues tried and submitted by the plaintiff to the jury. There is no evidence in the case showing that the plaintiff at the time she executed the deed to Carll, was under such compulsion of her husband as would amount to duress — such as would avoid a deed. All the testimony on this point is from the plaintiff, and defendant Tapley. Threats of battery or fear of the same does not amount to duress, although ever so well founded. Willard Eq. 208; 1 Parsons Cont. 319. There is no evidence in the case to show that there was any fraud practised on the part of the defendant Tapley towards his wife, upon which she relied, and which induced her to execute the Carll deed. Fraud is a false representation within the knowledge of the party making it, reasonably relied upon by the other party, and constituting a material inducement to his act or contract. If it is not a material inducement to the act, courts of equity will not relieve. Willard Eq. 148, 149.

5. The court erred in instructing the jury "that to constitute duress which would avoid the deed, it is not necessary that the threats be of physical injury alone, but threats of a separation from her, and that he would not support her, would amount to duress which would avoid the deed." 1 Parsons Cont. 319.

Points and authorities for respondent: —

1. The evidence objected to by the defendants' counsel relates to the circumstances under which the deed therein mentioned was obtained from the plaintiff by the defendant, and, we think, it was clearly competent. 2 Phil. Ev. Cow, & Hill's Notes, 686, 687, 690, and notes.

2. When an action is brought by a married woman concerning her separate property she may sue alone, and when the action is between herself and her husband she may sue and be sued alone. Comp. Stat. 535, § 30. The second ground of demurrer prescribed by the statute is, "That the plaintiff has no legal capacity to sue." Comp. Stat. 540, § 61. Section 64 of the same page provides, that "when any of the matters enumerated in section 61 do not appear on the face of the complaint, the objection may be taken by answer. And section 65 provides, that if no objection be taken either by demurrer or answer, the defendant must be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action." The objection of "no legal capacity to sue," therefore, cannot be taken advantage of on motion, but was wholly waived in this cause. It is observed that the statute of New York respecting suits by married women differs from ours. 12 N. Y. 580; 13 N. Y. 322, and cases cited; 14 How. Pr. R. 456; 3 Abb. Pr. R. 119; 6 Barb. 541; 11 How. Pr. R. 216; 12 How. Pr. R. 547; 12 Barb. 9; 2 Duer, 160; 8 How. Pr. R. 250.

3. The title of the cause is no part of the complaint proper. It is not an allegation to put in issue any more than the name of a party, or of the county where the action is brought.

4. The evidence to show a want of consideration in the deed to Carll, and the letters from Walker to Tapley, were properly admitted as bearing upon the questions of fraud and duress. 1 Greenl. Ev. 284.

5. The jury found that the deed to Carll was obtained by fraud, and that the defendant Walker had notice of it. This alone would avoid it.

6. To constitute duress per minas, it is not essential that the party be threatened with loss of life or limb, or with mayhem; fear of imprisonment is enough. Threats by the husband that he would leave his young wife, and would not support her, but would abandon her to poverty and want, without a home or shelter, constituted duress, the most summary and effective. In the application of an analogous principle, courts of equity watch with extreme jealousy, all contracts made with persons, who are in a condition to exercise a controlling influence over the will or conduct of others. 5 Hill, 158; 1 Parsons Cont. 321; Willard Eq. 208; 6 Mass. 506; 2 Wend. 243; 15 Johns. 256; 1 Story Eq. 239; 26 N. Y. 9; 3 Cow. 537; 6 N. Y. 272; 11 Paige, 538; 5 Denio, 640; 11 Paige, 467.

7. The verdict in this case is supported by evidence plenary and conclusive, and the motion for a new trial was properly denied. 7 Minn. [414]; id. [511]; 8 Minn. [70]; id. [218]; 5 Minn. [339]; 4 Minn. [148].

S. Smith, for appellant.

M. Lamprey, for respondent.

BERRY, J.

It appearing from the testimony of the respondent, who was plaintiff below, that she was a married woman and wife of one of the defendants, the counsel for the appellant moved to dismiss the action on the ground that the court had no jurisdiction of the person of the plaintiff, insisting that the objection could be taken by motion at any stage of the trial. This objection went to the legal capacity of the plaintiff to sue, and not having been taken by answer or demurrer, was waived. Pub. Stat. 540, § 69. The motion was therefore properly overruled. Several interrogations propounded to the plaintiff upon the witness stand were objected to as leading. Even if the interrogatories were leading in form, there is no inflexible rule by which they can be excluded. The judge who presides at the trial has far better opportunities of determining whether a question is objectionable as improperly suggesting an answer to the witness which will be but an echo of the question, than this court possesses, and unless it is quite apparent (as it is not in this case), that some gross injustice resulted from the mode of examination allowed, we are not inclined to criticise or review it. 1 Greenl. Ev. § 435. Several inquiries were addressed to the respondent by her counsel which were objected to as incompetent or irrelevant or both. They were all directed to the circumstances under which the deed from the respondent to Carll was executed or delivered, and as we think all had a tendency to show that the execution and delivery were not the free and voluntary acts of the respondent. Ordinarily the proper course would be to ask the witness to state the circumstances attending the giving of a deed, but for reasons which appear to have controlled the discretion of the court, counsel were allowed to call the attention of the witness to particular matters which went to give character to the transaction and by interrogatories which were leading in form. We can conceive of no reason why they were not competent. Certainly it would have been proper to ask the witness in a general way, "What induced you to execute the instrument?" and we apprehend that the interrogatories put to this witness were to the same effect.

It is to be remembered that in this action the respondent appeals to the equitable powers of the court, and it is not a case in which the defendant Walker comes into court with clean hands, setting up the innocency and bona fides of his purchase; but a case in which he has not only taken a conveyance in payment of a precedent debt, but in which, as the evidence tends to show and the jury...