Appeal from circuit court, Stoddard county; W. F. Ford, Special Judge.
Bill by Novella Turner against W. H. Overall and others. From a decree in favor of plaintiff, defendants appeal. Affirmed.
This is an action by respondent against the appellant W. H. Overall to cancel a deed of trust executed by plaintiff and husband to secure the payment of a note of $1,350 to W. H. Overall. The petition, answer, and replication in this cause present the issues fully, and in order to intelligently understand just what the issues were, as presented and tried by the lower court, we here insert them:
Petition.
"Plaintiff, Novella Turner, states that she is now, and at all the times hereinafter named she has been, the owner in fee of the following described real estate, situate in the county of Stoddard and state aforesaid, to-wit: The west half of the northeast quarter of section thirty-five (35) in township twenty-seven (27), range eight (8); that on the 12th day of October, 1896, she and her husband, George Turner, executed a deed of trust on the above-described real estate to the defendant N. M. Fouch, as trustee, for the benefit of the defendant W. H. Overall, to secure the payment of a note of that date for the sum of thirteen hundred and fifty ($1,350) dollars, payable to the said W.H. Overall on the 1st of July, 1897. Plaintiff states that at the time of said execution of said deed of trust she was, and still is, the wife of the said George Turner, and that at the time she executed said deed of trust there was pending in the circuit court of De Kalb county, in the state of Tennessee, a bill of indictment against her said husband, the said George Turner, wherein and whereby her said husband was charged with the crime of forgery; that her said husband was not guilty of said crime, and that said indictment was falsely and fraudulently procured from the grand jury of said county against her husband by the defendants for the purpose and with the intent of procuring from this plaintiff said deed of trust or other security for the payment of an alleged claim held by them against plaintiff's said husband in said sum of thirteen hundred and fifty ($1,350) dollars, and on the day aforesaid, to wit, on the 12th day of October, 1896, the said defendant asked and demanded of the plaintiff that she should sign and execute said deed of trust upon her land above described, which was her home, and all she had to secure the same; that upon her refusal to comply with their demands, and to sign and execute said deed of trust, the said defendants, W. H. Overall and N. M. Fouch, told the plaintiff that they had in their possession extradition papers, duly signed and executed by the Governor of the state of Tennessee, under and by virtue of which they had full and competent authority to arrest the plaintiff's husband, the said George Turner, and to take him back to the state of Tennessee, where he would be prosecuted and convicted and sent to the penitentiary for said alleged offense, and that said defendants did then and there present and show to this plaintiff a large paper, having thereupon the name of the Governor of Tennessee, and a large, red seal thereupon, to which was attached a ribbon, and which they declared was the extradition or requisition paper aforementioned
and both of the defendants then and there said to this plaintiff that unless she would sign and execute said deed of trust upon her said land to secure the said sum of thirteen hundred and fifty ($1,350) dollars, which the defendants then claimed against her said husband, the said George Turner, they would immediately arrest her said husband and carry him back to the said state of Tennessee, and would prosecute and convict and send him to the penitentiary, but that if she would sign and execute said deed of trust, as they wished and requested her to do, they would not have her said husband arrested and prosecuted upon the charge aforesaid, and would not inform the officers of the law of his whereabouts; that plaintiff fearing that said defendants would carry out their said threats to have her said husband arrested and prosecuted aforesaid, and relying upon their promise that they would not have him arrested and prosecuted upon said charge of forgery, and that they would not inform the officers of the law of the whereabouts of her said husband, and in consideration of this promise only, she did sign her name to said deed of trust, and did acknowledge the same, which were by the direction of said defendants, and plaintiff did afterwards deliver said deed of trust to the defendants for said purpose. Plaintiff states that when she was informed by the defendants that an indictment was pending against her said husband in which he was charged with the crime of forgery, the same was so sudden, and so excited and unnerved her, that she could not deliberate upon the matter, and in fact did not know what to do; that defendants observed her condition, and took advantage of it, under the circumstances, knowing that plaintiff was greatly confused and disturbed, and that she was easy to be made a victim of their artful and importunate cunning; that defendants refused to give this plaintiff time to consult disinterested friends or counsel, but they demanded that she should act, saying that if she did not act at once they would arrest and take her husband away under said papers, and prosecute him as aforesaid. Plaintiff says that she was not upon equal terms, under the circumstances, with the defendants; that she did not know at the time, and had no idea, that the said charge against her husband had been trumped up by the defendants for the purpose of procuring from her the deed of trust aforesaid to secure the payment of an alleged indebtedness of her husband to them, or one of them, and could not have known so unless she had ample time to think over the matter and to learn the facts in connection therewith, and defendants refused to give her any time to consider the matter or consult with friends, and that, under the circumstances, being ignorant of the facts and greatly agitated, and under the importunity of the said defendants, she was entirely unable to protect herself, and therefore signed and executed said deed of trust; that she was overwhelmed with the information that her husband had been guilty of forgery, and, on the `spur of the moment,' and under the importunity of defendants as aforesaid, and in the hope on her part of saving the family honor, she executed the deed of trust, and delivered the same to these defendants; and that she had no other, further, or definite consideration for doing the same than as above set forth and pleaded. Premises considered, plaintiff prays the court to annul, set aside, and declare absolutely void the deed of trust aforesaid, and to order and decree that the same be delivered to this plaintiff for cancellation; and plaintiff further prays the honorable court to cause the defendants to produce in court, and to deliver to this plaintiff such other and further releases as may be necessary and proper in the premises to fully relieve her title from the cloud and burden cast upon it by said deed of trust, and for all other proper relief in the premises. George Houck & J. L. Fort, Attorneys for Plaintiff."
Amended Answer.
"Now, at this time comes defendant, and files this, his first amended answer, and, for answer to plaintiff's petition, denies each and every allegation therein contained, except that plaintiff, with her husband, executed the deed of trust described in plaintiff's petition, of her own free will and accord, to secure the indebtedness of her husband as described in said deed of trust. Defendant, further answering, states that on the ___ day of January, 1896, Robert Turner, alias George Turner, husband of plaintiff, and plaintiff were living in the county of De Kalb, in the state of Tennessee; that said husband of this plaintiff at said date became indebted to defendant W. H. Overall in the sum of seventeen hundred dollars; that at said time said husband of plaintiff, Robert Turner, alias George Turner, was in solvent circumstances, and that plaintiff had no estate of her own, except that which she acquired through her said husband; that said Robert Turner, alias George Turner,...
