123 Kan. 674 | Kan. | 1927
The opinion of the court was delivered by
This was an action to foreclose a mortgage on a Salina residence property given to secure an alleged loan of $3,000 evidenced by a note for that amount, dated April 1,1922, due in six months, and executed by defendants in favor of plaintiff.
The defense was that the note and mortgage were procured by duress and fraud practiced on the defendant Mary V. Graves Lipe, the alleged details of which were to this effect:
Following her mother’s death about a year'later, defendant caused the proceeds of her share of her father’s estate, about $4,200, to be delivered to the plaintiff bank, and the bank let her purchase a house in Salina with part of this money, taking her note for $3,000 and a mortgage on the house to secure its repayment.
To enforce collection of this note this action was begun.
In her answer to plaintiff’s petition defendant alleged that all her dealings with the plaintiff bank were occasioned by the representations of Hausam and the other agents of the bank, which were that unless she turned over her building and loan stock and signed the contract subjecting her expectant interest in her father’s estate to the satisfaction of the bank’s claims against her son, he would be prosecuted and sent to the penitentiary for supposed financial misdeeds the bank’s agents intimated' he had committed. She alleged that her dread of such dire consequences likely to befall her son induced the doing of all her acts and agreements with the bank, including the giving of the note and mortgage sued on in this action.
The evidence of the parties was heard at length. The jury returned a verdict for defendant in the matter of the $3,000 note and mortgage; also a verdict in her behalf for the value of the building and loan stock; and answered many special questions, some of which read:
Questions Submitted by Pdaintiff.
“Q. State whether or not you find that the plaintiff bank requested Jay Hausam to induce Mary Graves Lipe to go to Hutchinson? A. Yes.
“Q. Did any of the officers of the bank or its attorney know that T. H. Graves had a mother or brother living prior to their arrival at Hutchinson in 1920? A. Yes.
“Q. Did the attorney for the bank at their first conference advise Mrs. Lipe that she was under no obligation to pledge her property but must do so voluntarily, if at all, or words to that effect? A. No. 0
“Q. Did J. F. Graves and his mother know when they started to go to Hutchinson that criminal charges against Heinie Graves were threatened. A. Yes. . . .
“Q. Did the officers of the plaintiff bank or its attorney know at that time the original contract was signed that such bank had sufficient legal grounds to the criminal prosecution against Heinie Graves? . . .
“Q. Were criminal charges made or filed in December,-1920, against Heinie Graves? A. Yes.
“Q. If you find that there were criminal charges pending against him in December, 1920, state who made the charges? A. Jay Hausam.
“Q. If you find that such charges were made state whether or not you find that such charges were dismissed at the January, 1921, term of the district court of Reno county, Kansas? A. Yes.
“Q. State whether or not you find that he was permitted to go free as soon as Jay Hausam had talked with him upon his return? A. Yes. . . .
“Q. Did Mrs. Lipe obtain legal advice in 1924 to the effect that she had a defense to the note and mortgage sued on herein? A. Yes.
“Q. Did Mrs. Lipe in the spring- of 1924 advise Mr. McLeod, president of the plaintiff bank, that she would sell the property and pay the above-mentioned note? A. She said she would try.
“Q. Did Mrs. Lipe in the late spring of 1924 discuss with Heinie Graves a proposal to offer the sum of $1,500 in settlement of the note sued on in view of the fact that they could obtain a loan for $1,500 on the property? A. We don’t know.
“Q. Did the plaintiff bank at some time during the year 1922 have in its possession as security for the note of Mrs. Lipe and her son a cashier’s check for the full amount of the note? A. Yes.
“Q. Did they thereafter in compliance with her wishes release $3,000 of the money to purchase the property in suit? A. Yes.
*677 “Q. Did Mrs. Lipe in her letter of Feburary 25, 1922, addressed to Mr. Malloy, request that she be permitted to invest the money in a home ‘as agreed on in opr contract?’ A. Yes. . . .
“Q. Did the defendants or either of them or anyone acting for them ever make any complaint to plaintiff bank or any of its officers about any of the transactions between them, or claim that Mrs. Lipe had been defrauded or placed under duress prior to the demand for payment in the spring of 1925 prior to the filing of this suit? A. Yes. «E. Reigle, Foreman.”
Questions Submitted by Defendants.
“Q. Was the defendant, Mrs. Lipe, induced to sign the contract in writing mentioned in her answer and cross petition at Hutchinson, Kan., December 8, 1920, solely by the threats of the plaintiff to find, arrest and imprison her son if she did not sign it? A. Yes.
“Q. When she signed said contract was she in such fear from the threats of the plaintiff to find, arrest and imprison her son if she did not then sign said contract that she was deprived of the free exercise of her will power in signing said contract? A. Yes.
“Q. When Mrs. Lipe delivered her building and loan stock and her share of the estate of her father and mother to the plaintiff was she still in such fear from the threats of the plaintiff that it would arrest and imprison her son if she did not carry out the terms of her written contracts with it, that she was deprived of the free exercise of her will power in so delivering her said property to plaintiff? A. Yes.
“Q. When she signed and delivered the note and mortgage in suit was she in such fear from the threats of the plaintiff to arrest and imprison her son if she did not secure his debt to the bank that she was deprived of the free exercise of her will power in signing and delivering said note and mortgage? A. Yes.”
Judgment was entered accordingly and the bank appeals assigning two errors — the overruling of its motion for judgment notwithstanding the verdict, and overruling its motion for a new trial.
Under this assignment plaintiff first contends that the jury’s findings 1, 2, 3,19 and 24 were not sustained by evidence. Touching findings 1 and 2 the circumstances tended strongly to support an inference that Hausam was acting for the bank when he induced Mrs. Lipe to come to Hutchinson, and that he had informed the bank of her existence. No other rational inference is readily deducible from the fact that he got the woman to come to Hutchinson, and what he said to her and did with her on her arrival — taking her directly to the office of the bank’s attorney and other agents, filling her simple mind with dread of the impending danger to her son and the possibility that she could avert that danger by devoting her small means
Plaintiff next discusses the evidence' to support the defense of duress, and argues how improbable it was that even if duress had been .practiced on the woman when she first came to Hutchinson in December, 1920, pursuant to Hausam’s telephone call, that such alleged duress could have endured for the long period of time which followed when she was far away from any possibility of personal control or coercion by the dominant minds of the bank’s officials. Counsel for the bank submit a synopsis of events and transactions to support their argument that duress could not have continued until the giving of the $3,000 note and mortgage, and that both before that transaction and following it Mrs. Lipe had voluntarily ratified the agreement supposedly made by her under duress. That synopsis or chronicle, in part, reads:
“1. December 6, 1920. Hausam . . . notified Mrs. Lipe by telephone*679 that Heinie had gone, and that the Commercial [?] National Bank . . . was threatening to prosecute him, and requested her to come.
“2. December 8, 1920. The threats are alleged to have been made; and contract executed with plaintiff. . . .
“4. January, 1921. Criminal charges against Heinie Graves (instituted by his partner, Jay Hausam, only for the purpose of getting him to return), are dismissed.....
“6. November, 1921. Mrs. Lipe and Heinie voluntarily came to Hutchinson to inform the bank that her mother had died, and executed new contract. . .
“7. January 20, 1922. Mrs. Lipe executed new note and assignment.
“8. February, 1922. Mrs. Lipe and Heinie informed bank as to name and address of administrator of estate, and suggested that in notifying the administrator no intimation be given of the true situation.
“9. February, 1922. Mrs. Lipe demanded release of money ‘as agreed in contract’; that she might invest the funds in a home.
“10. Mrs. Lipe and Heinie voluntarily went to Enterprise and arranged with a bank there to act as plaintiff’s agent.
“11. April, 1922. Mrs. Lipe and her husband go to Salina bank . . . and sign note and mortgage on which suit is based, and plaintiff bank thereupon releases funds in its possession.
“12. At the last named' date the plaintiff bank had the funds in its possession sufficient to pay note.
“13. April, 1924. Mrs. Lipe informed McLeod, president of plaintiff bank, that she would try to sell the Salina house to pay the note.
“14. Afterward in 1924 Mrs. Lipe was informed by her attorney that she had a legal defense to the note and mortgage.
“15. She failed to pay interest and taxes, and bank had to pay taxes.
“16. No complaint ever made about duress, until after the suit was filed.” [ ?].
Undeniably this makes a strong showing that the continued existence of duress for the long period covered by this chronicle of events was highly improbable, but it cannot be denied that there was evidence which did tend to show duress and did show that it continued until sometime after the note and mortgage sued on were executed'. That being the situation, of what avail is it to seek to persuade this court that this controverted issue of fact might very well have been decided the other way by the tribunal authorized to determine it? (Perkins v. Accident Association, 96 Kan. 553, 555, 152 Pac. 736; Lumber Co. v. Workman, 105 Kan. 505, 508, and syl. ¶ 1,185 Pac. 288.) So far as the pertinent law of duress is concerned it must have been declared with substantial accuracy in the court’s instructions to the jury, for no complaint or criticism thereof is urged on our attention. And this court has held that there is a presumption that as long as duress endures conduct in apparent recognition of contracts made under such circumstances does not constitute ratification. (Smith v. Bank, 90 Kan. 299, 133 Pac. 428; Bank v. Bay,
It is also urged that defendants were estopped to set up the defense of duress because they never did move to set aside the contracts or the note and mortgage procured by the alleged duress, and that it was their duty to assume the initiative to have them set aside. This contention assumes that the duress terminated at some considerable interval of time before this action to foreclose the note and mortgage was begun. Sometime in 1924 (finding 17) Mrs. Lipe learned that she had a defense to the note. This action was begun in May, 1925. The delay was not for an unreasonable time, if the rule contended for was one of absolute and invariable application; and, indeed, it could not be so declared that Mrs. Lipe violated that rule. The woman was in possession of the property. She did not pay interest or taxes after taking advice of counsel. Such an omission was one sort of initiative to bring an end to plaintiff’s pretensions to the property and to bring the differences of the parties to an issue if' plaintiff should be disposed to put the matter to the hazard of litigation. Moreover the rule itself is not one of general application, as was shown in the interesting and somewhat analogous case of Bell v. Campbell, 123 Mo. 1, 45 A, S. R. 505, two paragraphs of the syllabus of which, in part, read:
“1. Where a woman, seventy years of age, inexperienced in business and illiterate, is induced by her son-in-law and the sureties upon his official bond to execute a mortgage on her land to indemnify the sureties in defalcation by the son-in-law by holding out to her the probable punishment of the latter, without affording her a chance to consult any disinterested friend, the mortgage will be set aside.
“3. The fact that she did not move for relief until after the statute of limitations barred any prosecution of the son-in-law, the mortgage not having matured, will not deprive her of relief, as she will be deemed to have acted under the original constraint.” "
The other matters argued in the painstaking brief of counsel for the bank have been carefully noted, but this cotut is bound to hold that no error of such' gravity as would permit the judgment of the district court to be disturbed is discoverable; and that judgment is therefore affirmed.