Heard
July 13, 1863
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Appeal
in Chancery from Ingham Circuit.
The
bill was filed to foreclose a mortgage given by said Louise
Thurber, on her sole property, to secure a debt of Caleb
Thurber, her husband. The mortgage bore date January 6, 1857,
and its acknowledgment was taken by John Marble, a Justice of
the Peace, who certified that she acknowledged, separate and
apart from her husband, that she had executed it freely, and
without fear or compulsion from any one. A decree of
foreclosure having been taken by default, Mrs. Thurber
afterwards obtained an order opening the decree, and giving
her leave to defend. She then filed her answer, in which she
admitted the making the mortgage, but alleged that the same
was signed by her under protest, that she did not execute the
same freely, and only after assurance of Watson and her
husband that her property and rights therein should not be
disturbed in consequence of the making thereof. In reference
to this defense the following evidence was taken:
Louise
Thurber, the defendant, testified: "At the time of the
execution of the mortgage, Mr. Watson and John Marble were
present; the mortgage was given for the purpose of securing
the payment of a debt due by Mr. Thurber to Mr. Watson, of
about one hundred and fifty dollars; the debt was for money
loaned Mr. Thurber; I do not remember when the loan was made;
I first knew of the existence of the indebtedness about the
time the mortgage was given; Mr. Thurber told me of it; the
way he came to tell me of it was this: He had got some money
of Mr. Watson, and had given him a mortgage of his own
property to secure the payment of it; I learned that it had
been given from Thurber and Mr. Watson both; Mr. Watson
brought it back; it did not suit him in some way; when Mr.
Thurber told me of the indebtedness, he asked me to sign a
mortgage on my property; this was the same day the mortgage
was executed; Mr. Thurber had never asked me to give this
mortgage previous to that day that I remember of; I do not
recollect whether any person was present when he asked me to
give the mortgage; I think no one was present; don't know
in which room it was; when he asked me to sign the mortgage,
I told him I did not think Mr. Watson needed a mortgage on my
property, and I was utterly opposed to giving it; Mr. Thurber
urged me very hard to give it, and told me if I would my
property should not be touched for it; I still refused to
sign it; I did not say I would not execute it; the
conversation about the execution of the mortgage commenced in
the forenoon; they came to our house, I should think, about 8
or 9 o'clock in the morning; after I told Mr. Thurber I
did not want to sign the mortgage, he and Mr. Watson urged me
very hard to execute it; I once told Mr. Watson I would not
sign it; I do not remember what reply he made to this; he
talked to Mr. Thurber a spell; Mr. Watson and myself, at the
time he was urging me to sign the mortgage, were in the
sitting-room; Mr. Thurber thought that, rather than to have a
quarrel with the neighbors, I had better sign the mortgage,
and I did so; I suppose he meant Mr. Watson, by neighbors
that he spoke of; he did not say who would make the
disturbance, but I took it to be Mr. Watson he meant; I think
Mr. Watson did not come back again, but I cannot say for
certain; there was a good deal said that I can't
remember; I think Mr. Thurber and Mr. Watson each came to
talk with me about it alone; I do not remember of any person
being there except Mr. Marble; they stayed till they worried
me out, teasing me to execute this mortgage; Mr. Thurber did
the most of the talking with me about it; the reason he gave
me for signing it was that he should have a disturbance, and
would be made trouble; do not know that he gave any other
reasons; he told me he would pay it up without my having any
trouble about it; I think the debt was to be paid within the
year; Mr. Thurber had more than one conversation with me
about it; I remember his taking me into the other room to
talk about it as many as three times, and I refused to sign
it; this was a room adjoining the one where Mr. Watson was;
the reason I gave Mr. Thurber for not signing the mortgage,
was that I did not want my property endangered; I told Mr.
Watson I did not want to sign it, as I had a family of small
children, and was afraid my property would be taken for it,
and leave them destitute; Mr. Watson said he did not think
there was any danger, as he thought Mr. Thurber would be able
to pay it up; he said he should not be in any hurry for the
money; he said the money did not belong to him, and he would
not be in any hurry for it; I urged Mr. Watson to take the
security Mr. Thurber had given him, and let my property be; I
signed the mortgage, I think, as late as noon, and perhaps
later; I cannot tell the time; I refused a long time to sign
it, and did not say at all I would do it; Mr. John Marble
took the acknowledgment of the mortgage; Mr. Marble asked me
if I executed it freely of my own accord; I told him I did
not; he asked me again; he might have worded it a little
different--I can't remember; I told him the second time I
had not done it freely; Mr. Marble dropped the mortgage upon
the table, and said: Mr. Watson, it isn't worth a straw;
I do not remember the reply Mr. Watson made to this; Mr.
Marble then asked me if I did it through fear of Mr. Thurber;
I told him I did not do it because I was afraid of Mr.
Thurber--that I did it more to keep peace in the family; I do
not know what Mr. Marble then said to me; Mr. Marble asked me
some other questions, but what it was I cannot tell; I was so
excited at the time I did not remember it; Mr. Watson said he
would risk it; I do not recollect of anything further; the
parties soon after separated; I am still the owner of the
premises described in the mortgage, and in the occupation of
them; I should not have said that I did not say I would not
execute the mortgage, for I remember now that I did tell them
both several times that I would not sign it; my statement
above, that I did not say that I would not execute it, is
incorrect; Mr. Watson was present when Mr. Marble asked me if
I executed it freely; I cannot say whether Mr. Thurber was
present or not, but it seems to me he was sitting by the
window; at no time during the taking of the acknowledgment
was I alone with Mr. Marble; Mr. Watson, I am sure, was
present, and think Mr. Thurber was too; Mr. Thurber gave as a
reason why my property should not be touched, that he would
pay the debt; I understood that if the debt was not paid Mr.
Watson could foreclose the mortgage, and sell my property if
he was a mind to; I do not know that Mr. Thurber told me what
trouble he meant when he urged me to sign it, but I
understood it to be in relation to the borrowed money. When I
signed the mortgage mentioned in the bill of complaint, I
expected it to go into Mr. Watson's hands for the purpose
of securing the loan."
Caleb
Thurber testified: "I was present at the execution of
the mortgage to Watson; I was present at the time of the
taking the acknowledgment by Doctor Marble; I do not remember
that I was out of the room at any time during the examination
of Mrs. Thurber by Mr. Marble in reference to the execution
of the mortgage; Mr. Watson was also present; this mortgage
was given for my debt; I heard the conversation between Mr
Marble and Mrs. Thurber and Mr. Watson, at the time the
acknowledgment was taken; I heard the questions propounded by
Mr. Marble to Mrs. Thurber in reference to the
acknowledgment; Mr. Marble asked her if she executed the
paper freely; her reply was that she did not do it freely; I
think the doctor asked her if she was afraid of me the reason
she did not execute it freely, and she replied that she could
not say that she was afraid of me, or something to that
effect; I think the next move that was made the doctor threw
the paper on the table and said that it was not worth a
straw; there were some remarks made by the doctor and Mr.
Watson; Mr. Marble was delicate about acknowledging the
mortgage; there was some argument about it between them. Mr.
Watson finally said if he would execute the acknowledgment he
would risk it; I do not know as anything more was done or
said; Mrs. Thurber appeared a good deal excited during the
time the negotiations were going on; Mrs. Thurber executed
the mortgage at the solicitation of myself and Mr. Watson;
there was a good deal said, and it took a good deal of
persuasion on our part to get her to do it; from the time I
proposed to her to sign the mortgage until she did sign it, I
should think it was three hours. One reason she gave why she
would not sign the mortgage was that Mr. Watson already had a
mortgage on my property sufficient to secure him; another was
that she did not want to have her property incumbered; Mr.
Watson and myself both told her she should not be hurt for
the debt; I told her she should not have the debt to pay, and
Watson told her he did not think there was any danger of her
having it to pay; when I said I was present at the taking of
the acknowledgment of the mortgage, I meant I was in the same
room. This room is in the southeast corner of the house
fronting the street. ...
