Winfield Nat. Bank v. Croco

• Decision Date: 06 June 1891
• Citation: 26 P. 939,46 Kan. 620
• Parties: WINFIELD NAT. BANK v. CROCO et al.
• Court: Kansas Supreme Court

26 P. 939

46 Kan. 620

WINFIELD NAT. BANK v. CROCO et al.

Supreme Court of Kansas

June 6, 1891

Syllabus

1. If a creditor obtains the signatures of a man and his wife to a mortgage to secure a debt upon which the man is surety, by representations that the instrument is not a mortgage, but simply a paper to protect the man from arrest and imprisonment for an offense committed, and it appears that they are old people, whose eve-sight is so impaired that they cannot read the writing in the mortgage presented to them for signing, such mortgage will, in a proper proceeding promptly begun, be declared invalid, and will be canceled.

2. If the creditor operated upon the fears of the husband by threats of arrest and imprisonment believed by him to be imminent, and thus overcomes his will, and through fear and undue influence compels him to sign the mortgage, the signature is not binding; and, if the wife is induced to execute the mortgage from fear excited by threats made to her by the creditor of an illegal criminal prosecution against her husband, the instrument thus obtained will not be binding upon her.

3. The testimony in the case examined, and held to be sufficient to sustain the finding of the court that the mortgage in controversy is invalid.

4. The mere expression of the opinions of witnesses that the court entertained bias and prejudice for and against some of the parties in the action, without a statement of the facts and grounds upon which such opinions were founded, cannot be regarded as testimony, and is entitled to no consideration in an application for a new trial.

Error from district court, Cowley county; M. G. TROUP, Judge.

Peckham & Peckham, for plaintiff in error.

S.E Fink and McDermott & Johnson, for defendants in error.

OPINION

JOHNSTON, J.

This was an action brought in the district court of Cowley county by Barbara Croco and John Croco to cancel and set aside a mortgage executed by them to the Winfield National Bank on February 20, 1889. It was alleged that the property mortgaged was the homestead of Barbara Croco and John Croco, situated in Winfield, and a farm near to Winfield, and that both the homestead and the farm were owned by Barbara Croco. The plaintiffs below averred that the signatures to the mortgage were obtained by fraudulent representations, duress, intimidation, and threats of injury. They averred that the pretended mortgage was procured without any consideration, and without any knowledge on their part of its contents, but, on the contrary, that the bank and its agents, with the intent to defraud them, falsely represented that the instrument was not a mortgage, but was a paper necessary to be executed to keep John Croco from being criminally prosecuted and imprisoned. They alleged that they were unable to read, and did not read or hear the instrument read, and were not aware of its contents at the time of signing the same. They further say that the acknowledgment of the mortgage was taken by G. H. Schuler, a stockholder and officer of the bank, but that he did not inform them, or either of them, that the instrument was a mortgage, or that he was attempting to take their acknowledgment to a mortgage. The bank denied all the averments of fraudulent representations and duress alleged in the petition, and stated that the mortgage was procured from the Crocos in the ordinary course of business and for a valid consideration, to secure the payment of a promissory note, executed by P. C. Croco and John Croco, for the sum of $5,405. The case was submitted to the court upon conflicting testimony, and the claims of the plaintiffs below were sustained, it being held that they did not voluntarily or legally execute or acknowledge the mortgage, and that it was without consideration, and void. It is not disputed that the instrument sought to be canceled in this proceeding was signed by John Croco and Barbara Croco on February 20, 1889. The name of John Croco was signed to it in a back room of the bank, in the presence of the officers, and the name of Barbara Croco was attached to it at her home, in the absence of her husband, and when no one was present but G. H. Schuler, an officer of the bank. It further appears, without question, that Barbara Croco was the owner of the property described in the mortgage, and that she was in no way indebted to the bank. Peter C. Croco, a son, was largely indebted to the bank, and his father, John Croco, had signed, as surety, with him, a note of $5,405, held by the bank. When the mortgage was signed by John and Barbara Croco, Peter was insolvent, and the officers of the bank, learning of his financial condition, were actively endeavoring to obtain security for his indebtedness to the bank. The record does not disclose the ages of John and Barbara Croco, but they are spoken of as old people, and the testimony is that the eye-sight of each was greatly impaired.

The testimony of John Croco with reference to the signing of the mortgage, in substance, is that on the morning of February 20, 1889, he started to the railway depot to take the train for the town of Floral, to visit his daughter that, while waiting for the train at the depot, J. N. McDonald, the vice-president of the bank, came in, and invited him to return to the bank, but Croco declined. McDonald insisted that he must go to the bank, as there was urgent business, and, picking up Croco’s valise, he started towards the bank with it, and, finally, Croco reluctantly accompanied him. He was taken to a back room in the bank building, where McDonald sat down and commenced writing. Shortly afterwards, George H. and Everett Schuler came into the room, and the paper upon which McDonald had been writing was presented to Croco for signature. Croco inquired what the nature of the paper was, stating that he had not his glasses, and was unable to read what was upon the paper. He was told that it was for the purpose of keeping the United States officers from arresting him upon the charge of obtaining money under false pretenses; that money had been obtained from the bank upon the note signed by him; that it was a United States bank, and that they must telegraph the United States officers at Washington by noon that day if the paper was not signed, and that they would telegraph to the marshal or some other officer at Kansas City, who would proceed to Winfield and arrest him. George H. Schuler sat down and wrote a dispatch, which he held up in Croco’s face, saying that there was a dispatch that would go to Washington if he did not sign that paper, and that the officers there would telegraph, and cause him to be arrested and taken to Leavenworth. Everett Schuler made a similar statement and argument, and McDonald pushed the paper over to him, and said if he would sign it now that he would be all right. Croco said he repeatedly asked what the paper was, and to have it read, and at each time was told that it was simply to protect him from prosecution and arrest. He states that he declined to sign, and that he arose, and started for the door, telling them that he would go and see his lawyer, and, if his lawyer said it was right to sign the paper, he would do so, when George H. and Everett Schuler jumped to their feet, and sharply said that he could not go, but must sign the paper. Dr. Perry, another director of the bank, came in, and joined with the others in an effort to obtain his signature to the paper. He had been a friendly neighbor of Croco’s, and he talked pleasantly to him, and advised him to sign it, and avoid trouble; and that, if he did not, the officers at Washington would be notified at once. He was repeatedly told that if he did not sign it before 12 o’clock the telegram would be sent, and about 15 minutes before 12 he signed the paper. He said that he was at no time informed that it was a mortgage, and was told that it was not intended to affect his or his wife’s property. After he had written his name, George H. Schuler tore up the dispatch, and when ...