24 Mich. 136 | Mich. | 1871
The bill in this case is filed to foreclose a mortgage dated February 27, 1868, to secure five thousand dollars and interest, payable at various period's, running through ten years, according to eighteen promissory notes. The mortgage was made to Joseph W. Huston, and the notes were payable to him or bearer, and stated on their face that they were secured by the mortgage. Complainant holds four notes, amounting to one thousand and fifty dollars and interest, and sues to foreclose to the extent of his ownership, averring the remaining property to be in Beebe and Stephenson.
The defense relied on is, that these securities were obtained of Withey, to settle a charge of adultery with the wife of defendant Beebe, and that they were given under circumstances which rendered them invalid.
Briggs claims to have been a tona fide purchaser without notice, but has also introduced testimony to show the validity of the transaction. Wo think the evidence preponderates against his being a holder without notice, and the case depends upon the general equities.
The settlement was made during a period just after proceedings had been commenced to recover civil damages
There is no dispute, therefore, about the power of the-parties interested to make a valid compromise of such a claim, and none concerning the propriety of making it at such a time, if fairly and honestly brought about. Everything depends on the real nature of the transaction. One important element in the case which renders it peculiar, is-that under our statutes, while adultery is made a felony, it can only be prosecuted at the instance of the injured husband or wife; so that the person aggrieved obtains a control not given by our laws to those suffering from other felonies, and thereby is enabled to wield an influence very different from that of a party who can only claim dominion over civil proceedings.
The statutes cannot be supposed to contemplate that such a power as this can be properly used to secure any larger private damages, or any more- favorable settlement than would be obtainable without it. It ought not to enhance a pecuniary recovery or compromise, or to be considered as a legitimate element in concluding any such arrangement.
The law, while it does not disapprove of any fair arrangement, out of court, of claims that may be the subject of litigation, scans with jealousy all transactions wherein legal proceedings are used or threatened for oppressive purposes; and while it will not be over-nice in measuring the conse
In the present case, Withey was notified by the officer who served a civil warrant on him in the afternoon, to come over with his bail in the evening and have the bail papers executed. He came over for that purpose with his bondsman, Mr. Mills, and after meeting the sheriff they started out to find some one to draw up the papers. The office of Mr. John E. Baker was lighted up, and they went in and found him in the office. Up to this time there is nothing in the case to indicate that Withey had any idea of doing more than putting in his bail. He had no thought of settling, and no apparent anxiety about it.
Upon informing Mr. Baker what was wanted, he declined drawing the papers unless he should be employed in the suit. Withey said he would rather go to Kalamazoo for counsel, but Baker insisted that he would not draw the papers on other terms. Thereupon Whithey, who did not know Baker, consulted with the sheriff and his surety, and upon being assured by them that Baker was competent and that he had better employ him, Withey did employ him,
Baker at once requested the others to leave the office to enable him and Withey to consult together. The general tenor of Baker’s talk with Withey was to urge him to settle on any practicable terms, under the representation that unless he did settle he would be likely to go to state’s prison and lose all his property besides. Baker represents his advice as having been volunteered, and not given as counsel. There can be no question that until Baker had given this advice, Withey had never thought of doing any such thing, and that without it there was nothing to lead towards that subject. Huston, the attorney who had brought the suit, was then sent for by Baker, and immediately came over. He appears, from his own testimony, not to have been at his own office, but at the hotel, and the messenger appears to have found him at once. There is much clashing of evidence as to the precise order of events after this, and as to whether the bail bond was signed before or after the talk about settlement; but Mills and Huston both place it after, and such seems more in accordance with the probabilities, though of no great consequence, perhaps. There is also some contradiction as to whether Withey or Baker first spoke to Huston about a settlement. Baker professes to have kept aloof from the negotiation, and to have constantly insisted that he was not acting as counsel. There is not much doubt that he did occasionally make such assertions, but the testimony shows plainly that he was the most active man in the negotiation, while it also shows that he did not in the least aid or advise his client as a counsel should have done, but in effect kept urging the importance of a settlement, with no attempt to inform
The case, then, is one where all that was done on
In regard to an arrangement like this, where it would be in the power of a jury to fix damages very much according to their discretion, it would be difficult, and probably impossible, to say that any sum intelligently and freely agreed upon would be excessive. But it is not impossible to determine whether, in such a case as this, the plaintiff, or those representing him, did not suppose he was getting-excessive damages. As we could not properly interfere with a verdict to reduce it according to mitigating proofs, there would be no special propriety in attempting here to consider their weight if they were fully before us. There are in the case some elements which might have been urged on a jury to reduce damages, but we shall not try to weigh them. We can only judge Iioav the parties acted in relation to the proper amount.
The evidence indicates that unless there Was a conspiracy (which we treat as not established), Beebe had given no specific instructions, and had no particular ideas about a settlement. Whether Huston had or had not anticipated a settlement, it is plain that he never seriously considered five thousand dollars as any less than a maximum proposal, and that Baker never seriously tried to reduce it. It is evident, from the facts surrounding the transaction, that there ivas eagerness on the part of Huston and his associates to bring it to a close; laying aside all the evidence of subsequent individual declarations. And unless we are to
But the papers were not executed until the next day but one after the night , when these transactions took place. And the question arises, whether the delay and interval did not remove the effect of any undue pressure. If, as a matter of fact, that influence no longer existed in force, then it would be of no account. It appears that Withey went to Kalamazoo, but could not confer with his. counsel there, who was' to come over to Paw Paw and see him on the 29th, — the mortgage having been actually executed on the 28th, and the settlement first canvassed on the night of the 26th of February, 1868. When Withey came back and met the other parties, he had taken no advice. Withey swears that Baker on this occasion disparaged his other counsel and told him if he did not settle, it would send him to Jackson, and would take all his property. The defendant Stephenson, who was Huston’s partner, advised him to settle. Baker denies that there were any threats, and relates to some extent what passed, therein contradicting Withey ; but he does not controvert the specific statements as to what he said himself, and states distinctly that he advised Withey not to settle on any terms, if not guilty, — which would not aid a man who was guilty, in determining his course. Baker also denies having any talk
If equity interfered in these eases, only in favor of parties against whom there wras no ground for seeking a settlement, relief would be very rarely granted. These advantages are seldom taken of persons altogether blameless. It interferes to preserve the law, itself, from being disgraced by perversion to extort unconscionable advantages. And the facts before us are very convincing that Withey was led into this settlement under a pressure, coming from sources which deprived him of the means of securing fair treatment, and that there was what is in equity to be regarded as a practical fraud practiced upon him.
The decree must be reversed with costs of this court, and a new decree entered, holding the securities valid only to the amount of two thousand dollars and interest, and only on behalf of the defendant Beebe’s share or property in the same; and requiring payment into court within ninety days, of that amount, with costs of the court below, except as reduced by the costs of this court; and in default thereof, that the premises be sold, and the proceeds brought into court, to be so applied on Beebe’s share of the securities, and that the cause be remanded, to be proceeded in on these principles.