57 Kan. 691 | Kan. | 1897
On December 2, 1889, Joseph and Rebecca Berry, husband and wife, united in giving to the Guaranty Investment Company a promissory note for $1,800, payable five years after date, and a mortgage securing the payment of the note was signed by them. The mortgage was upon a quarter-section of land occupied by them as a homestead, and it was subject and subordinate to another mortgage previously given by them to the Mutual Benefit-Life Insurance Company to secure an indebtedness of' $1,200. On February 2, 1890, and before the maturity of the note, the Guaranty Investment Company indorsed and transferred the same to the executors of' the estate of Charlemagne Tower, deceased, and the-mortgage was assigned- and delivered with the note. Default was made in the interest payments, and, afterward, the Insurance Company began a foreclosure
Joseph Berry did not appear or defend, but Rebecca Berry contested the validity of the mortgage given to the Guaranty Investment Company, alleging that it was signed under duress. She averred that her husband, who was a strong, powerful man, of violent temper, threatened to abandon her to her own resources, and, also, to kill her; and, believing that he was a dangerous man, who would carry out his threats, she was induced to sign the mortgage. She alleged that the land on which the mortgage was given was purchased by her husband as a homestead, and that it was occupied as a homestead before the execution of the mortgage, and had been continuously ever since that time. She did not question her liability upon the note, nor deny that the note and mortgage were assigned as alleged ; neither did she make any defense other than that of duress in the execution of the mortgage. On the latter ground she asked that the mortgage be canceled and held for naught.
A demurrer to her answer was sustained; and, she electing to stand on her answer, judgment was rendered against her for $2,625, and for foreclosure of the mortgage, and declaring the judgment a lien on the homestead premises.
Was the mortgage valid and enforceable? If the averments as to duress are true, there was no free will, or consent by Rebecca Berry in the execution of the mortgage. As the case stands, we must accept
“Mortgages are not intended to circulate as commercial paper, and we do not think that the interests of commerce require that the principles applicable to negotiable paper shall be extended to a mortgage executed under such circumstances as the mortgage in question.” First National Bank of Nevada v. Bryan et al., 62 Iowa, 42.
We think the answer alleged a defense, and the demurrer'thereto should have been overruled.
As the case is presented, the question of estoppel is not before us for consideration. While considerable time elapsed between the execution of the mortgage and the setting up of the defense, there is nothing to show knowledge on her part of the transfer of the note and the subsequent ownership of the same, nor are there any averments showing her acts or declarations in respect to the note and mortgage.
The judgment of the District Court will be reversed, and the cause remanded for a new trial.