Warden v. Reser

• Citation: 16 P. 60,38 Kan. 86
• Parties: JAMES S. WARDEN v. ALANSON S. RESER, et al
• Decision Date: 10 December 1887
• Court: United States State Supreme Court of Kansas

16 P. 60

38 Kan. 86

JAMES S. WARDEN v. ALANSON S. RESER, et al

Supreme Court of Kansas

December 10, 1887

Error from Marshall District Court.

ACTION by Warden against Reser and wife, upon a promissory note, and to foreclose a mortgage given to secure its payment. Trial at the August Term, 1885, and judgment for defendants. The plaintiff brings the case to this court. The material facts are stated in the opinion.

Judgment affirmed.

Waggener Martin & Orr, for plaintiff in error.

W. W Guthrie, and B. Giltner, for defendants in error.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.:

This action was instituted by the plaintiff in error, to recover judgment against Alanson S. Reser and Emma Reser his wife, on a certain note of $ 1,000, executed on the 2d day of January, 1879, to Frank W. Proctor, and assigned to the plaintiff in error, and to foreclose a mortgage, given to secure the payment of the note, on the homestead of Alanson Reser and wife, in Marshall county. The defendant, Alanson S. Reser, filed his separate answer, denying that he ever executed the note of that date to Frank W. Proctor, or that he ever had any knowledge of the existence thereof until the commencement of this action. He further averred, that about the time the mortgage attached to the plaintiff's petition appears to have been executed, he, without reading the same, but upon the representations of the plaintiff that it was additional security for a note of $ 2,000 to Frank W. Proctor, did sign and acknowledge what he understood to be a mortgage upon the said described real estate; and averred that the real property described in said mortgage was a homestead occupied by himself, wife, and children. This answer was verified.

Emma Reser filed her separate, verified answer, by which she denied that she executed the note, but stated that she signed a paper upon the representations of the plaintiff in error that it was a chattel mortgage. She averred that the real property described in the mortgage sought to be foreclosed in this action was the homestead of her husband and his family.

The case was tried by a jury. There were special findings, and a judgment for the amount of the note with interest, with a finding and decree that the mortgage was fraudulent and void. A motion for a new trial was overruled, and the case is here with all exceptions saved. The effort of counsel for plaintiff in error is, to show that the court below erred in overruling their motion for judgment on the special findings of the jury. They also complain of the refusal of the court to submit special interrogatories to the jury, and of the refusal to give instructions Nos. 1, 2, 5, 6, 7, and 8. A brief statement of the material facts is necessary, to fully comprehend the questions discussed by counsel, and appreciate their importance in the case. James S. Warden, the plaintiff in error, was a resident of Irving, Marshall county, until in June, 1878, he removed to Frankfort, a town a few miles from his former residence, in the same county. He was engaged in the banking business. Alanson Reser, with his wife and family, lived all this time on a farm, about nine miles from Frankfort, and was engaged in the cattle business. Reser had been doing business for several years before the execution of the note and mortgage in controversy at Warden's bank in Irving and Frankfort, borrowing money for his cattle transactions, and executing notes and chattel mortgages. The note and mortgage sued on were executed on the 26th day of February, 1879, before the plaintiff in error as a notary public, but both note and mortgage were dated on the 2d day of January, 1879. The difference in the date and time of execution is explained by Warden in his testimony as being done by the agreement of parties to cover interest due on Reser's paper, for which this mortgage was executed, to protect Warden as an indorser or guarantor. This note and mortgage were given to Frank W. Proctor, and assigned by him to Warden. This note and mortgage were executed as collateral to a note of $ 990, made on the 26th day of July, 1877, by Alanson Reser to S. Warden & Son, thirteen months after date, interest at twelve per cent. per annum. The consideration for the note was a lot of calves belonging to the firm of S. Warden & Son, sold to Reser by them. This note was indorsed, before delivery, with these words: "Payment guaranteed.--S. WARDEN & SON." It was delivered to Frank W. Proctor, who paid to S. Warden & Son the $ 990. Warden, on his examination, stated that this note was sent by Proctor, who lived in Vermont, to Walker, a banker at Irving, and that all these indorsements of payments were made by Walker, who had notes of Warden for collection in that neighborhood, out of the proceeds of these collections, except a credit of $ 112.91, which was money sent by Reser; that the first indorsement, of $ 29.85, is in Warden's handwriting; the next, $ 23.65, is his handwriting. He stated it was so, because Walker, having his notes for collection, would say to him when he went to his bank, "So-and-so has paid his note," and he would say, "Indorse it on the Proctor note," and he would hand it out, and he would make the indorsement. The next indorsement was made by Warden; the next was the $ 112.91 paid by Reser; the next was of $ 100 and $ 210 by Walker, Warden paying him the money; the remainder of the indorsements are in the handwriting of Walker. This note was originally given to Proctor, held by him, and then sent to Walker at Irving for collection, and subsequently delivered by Walker to Warden. The evidence respecting the signatures of Reser and wife to the note and mortgage is very conflicting. Warden states, substantially, that on the 26th of February, 1879, he saw Reser in town, and they made an agreement in his banking office that this note and real-estate mortgage were to be executed; that after banking hours he went with Reser to his home; that Reser took care of the horses, while Warden went immediately into the house, explained to Mrs. Reser the whole transaction, read to her the most important parts of the mortgage, including a description of the land, and that she signed the note and mortgage willingly and voluntarily, without protest or objection; that Reser subsequently came in, and signed the note and mortgage, and acknowledged the mortgage, and that both acted with a full knowledge of the contents, objects and purposes of both papers. Several experts in handwriting testified that the signatures to the note and mortgage are identical, and were written with the same pen and ink. Three persons testify to a conversation had with Mrs. Reser in their presence, shortly after this suit was commenced, in which she stated that she had signed the papers, but Jim Warden could not prove it, as there was no one in the room when she signed but her and Warden.

Reser swore that he left home about four o'clock in the afternoon of February 26th, to go to Frankfort to get medicine for a sick child; that arriving there he had to wait several hours for the return of the doctor, who had gone to the country; that some time after dark he was passing the bank, when Warden called him in, locked the door, and demanded of him a mortgage on his homestead to protect him against a certain note and chattel mortgage of $ 2,000; that Warden was very angry and threatened his life, and threatened to send him to the penitentiary for selling mortgaged property; and that, influenced by these threats, he signed the mortgage, but did not sign any note, nor was he urged or requested to do so. Warden instructed him not to say a word to his wife about the mortgage, and prepared to go home with him, procured his team, and they started to his house, nine miles away; the night was dark and cold; arrived at his house as late as ten o'clock; they both went in and found Mrs. Reser nursing the sick child; Warden spoke pleasantly to her, told her that he and her husband had made an agreement about the extension of the time for the payment of the $ 2,000 note and mortgage, and wanted her to sign a new mortgage in renewal of the old one. Mrs. Reser assented to this, and signed, while Reser, who had taken the child, was walking the floor with it in his arms; that he was still afraid of Warden, and did not say anything to his wife until after Warden had gone, and he then told her all that had occurred during the day; that his wife did not sign any note, only one instrument, and that was the mortgage he had signed, and that was folded down so that she could not see what it contained.

Mrs. Reser told substantially the same story as to what occurred at the house; admitted signing a mortgage, but trusted to the representations of Warden, and believed at the time she did sign the paper, from what Warden told her, that it was a renewal of a chattel mortgage for $ 2,000 that she had signed some time before.

Tending in some degree to support the statements of Reser, the testimony of Robert Smith, a farmer near Frankfort, is to the effect that he had a conversation with Warden about the time of the execution of this mortgage, in which Warden said, (referring to a former conversation about Reser's indebtedness to him, and Smith's expression of opinion that it would not be paid:) "Bob, I got that all right; I got a real-estate mortgage to secure that property; Mr. Reser has been selling mortgaged property." Smith then remarked: "Jim, us fellows have been buying that property for some time; you have been telling us to go over there--that it was all right." Warden said, "Reser couldn't prove it."

The jury were requested to render a special verdict, and not a...